The Laws Of Inheritance In Islam - 4.0

FIQH: AHLUS SUNNAH WAL JAMA'AH - TRADITIONAL SHAFI'I SCHOOL OF JURISPRUDENCE


Irth (Estate Division)

Estate division refers to the share allotted to each heir by Sacred Law.

The scriptural basis for estate division, before the consensus of Ulama come into ruling, consists of the Qur'anic Ayats on Inheritance, as marked below -

Allah SWT says in the Qur'an:

"Give unto orphans their wealth. Exchange not the good for the bad (in your management thereof) nor absorb their wealth into your own wealth. Lo! that would be a great sin." (Surah An-Nisaa: Ayat 2)


Allah SWT says in the Qur'an:

"Allah chargeth you concerning (the provision for) your children: to the male the equivalent of the portion of two females, and if there be women more than two, then theirs is two-thirds of the inheritance, and if there be one (only) then the half. And to each of his parents a sixth of the inheritance, if he has a son; and if he has no son and his parents are his heirs, then to his mother appertaineth the third; and if he has brethren, then to his mother appertaineth the sixth, after any legacy he may have bequeathed, or debt (hath been paid). Your parents and your children: Ye know not which of them is nearer unto you in usefulness. It is an injunction from Allah. Lo! Allah is Knower, Wise. (Surah An-Nisaa: Ayat 11)


Allah SWT says in the Qur'an:

"And unto you belongeth a half of that which your wives leave, if they have no child; but if they have a child then unto you the fourth of that which they leave, after any legacy they may have bequeathed, or debt (they may have contracted, hath been paid). And unto them belongeth the fourth of that which ye leave if ye have no child, but if ye have a child then the eighth of that which ye leave, after any legacy ye may have bequeathed, or debt (ye may have contracted, hath been paid). And if a man or a woman have a distant heir (having left neither parent nor child), and he (or she) have a brother or a sister (only on the mother's side) then to each of them twain (the brother and the sister) the sixth, and if they be more than two, then they shall be sharers in the third, after any legacy that may have been bequeathed or debt (contracted) not injuring (the heirs by willing away more than a third of the heritage)." (Surah An-Nisaa: Ayat 12)


Allah SWT says in the Qur'an:

"They ask thee for a pronouncement. Say - Allah hath pronounced for you concerning distant kindred. If a man dies childless and he has a sister, her's is half the heritage, and he would have inherited from her had she died childless. And if there be two sisters, then theirs are two-thirds of the heritage, and if they be brethren, men and women, unto the male is the equivalent of the share of two females. Allah expoundeth unto you, so that ye err not. Allah is Knower of all things." (Surah An-Nisaa: Ayat 176)


Also, the Hadith of Rasulullah SAW provides concrete evidence of this injunction, where he (SAW) is narrated to have said:

"Give the obligatory shares of the estate to those who deserve them, and the rest belongs to the closest male to the deceased." (Bukhari & Muslim)

Encouragement to master the knowledge of estate division comes from such Ahadith as the one from the Eminent Companion of the Prophet SAW - Abdullah ibn Mas'ud RA, whereby he narrates that the Prophet Muhammad SAW said:

"Learn estate division and teach it to people, for I am someone who will be taken from you, and this knowledge will be taken from you and calamities will ensure, until two men will one day disagree about the obligatory apportionment and will not find anyone to judge between them."


How to Work an Estate Division Problem

To work an estate division problem, one should:

(a) Determine the amount of the deceased's estate after deducting the expenses (as explained below);

(b) Make a list showing which of the deceased's heirs mentioned - exist (as explained below);

(c) Eliminate from the list any heirs with preventives (as explained in next post InshaAllah);

(d) On a sheet of paper, copy the parenthesised introductory paragraph (e.g. "summary of x's share") for every heir that exists. This will include such individuals, as the deceased's:

1. Husband

2. Wife

3. Father

4. Mother

5. Daughter

Note:
The shares of the above-named family members are not eliminated by anyone, though the shares of those named below may be eliminated by the existence of certain other heirs.

6. son's daughter

7. full sister

8. half sister from the same father

9. grandfather (father's father only)

10. grandmother

11. half brother or half sister from the same mother

12. and then others (i.e. sons and so forth)


(e) The list of heirs who shares are eliminated by the other existent heirs should be crossed off;

(f) If any universal heirs exist, we should see which of them eliminates the shares of the other universal heirs;

(g) Thus, we proceed by making a table of the heirs remaining (after (e) and (f) above). In this table, one writes the type of heir, the fraction each deserves, with the universal heir receiving the remainder, if any, and then at the top, one writes the total shares - this being the common denominator of the fractions, after which one calculates the shares that go to each;

(h) If the fractions of those besides the universal heir add up to more than one (i.e.the total estate), then one must adjust for this, as further explained below;

(i) But if the fractions add up to less than the total estate and there is no universal heir to inherit the rest, then one must redistribute the shares, as further explained below.

One may practice and test one's skill at estate division by reading through the present section and doing the problems depicted in the tables, though to do all the problems one must have a full worksheet that contains all the informination mentioned in (d), (h), and (i), above, plus the rules concerning universal heirs discussed.

Finally, it is best to check one's answers with an Aalim (an Islamic scholar), preferably a teacher from whom to take instruction, since this is a subject that is easier to acquire from its masters than from books.


Expenses Deducted From the Estate Prior to Estate Division

The first thing obligatorily taken from X's property is the expense of preparing the deceased Janazah; such as - the cost of the water to wash him, the washer's fee, cost of the shroud and perfume placed therein, pallbearers' fees, and so forth, and the cost of burying the deceased. These expenses are deducted before X's debts are paid, before his bequests are fulfilled / his estate divided; unless there is a financial obligation due on the property itself, such as:

1. When there is Zakat due from any year that X had neglected to pay before his death;

2. When some of the property has been put up as collateral; or

3. When X dies bankrupt with unpaid-for merchandise among his property; which must be returned to the seller before paying other expenses from X's property.


After the above are paid, the following measures are taken, and the sequence given is obligatory:

1. X's debts are paid, though if a government takes non-Islamic estate taxes, these are deducted from the main part of the estate before debts or bequests, just as any other loss would be;

2. Then X's bequests are carried out from a third of what remains after debts; and

3. Then X's remaining property is divided between his estate division heirs.


Heirs

X's male heirs consist of:

1. X's son;

2. X's son's son, son's son' son, and on down;

3. X's father;

4. X's father's father, father's father's father, and on up; (Note: In the Laws of Inheritance, the term 'grandfather' refers only to the paternal grandfather)

5. X's full brother, or half brother from X's father or mother;

6. The son of X's full brother, or son of X's half brother from the same father;

7. X's father's full brother, or son of X's half brother from the same father;

8. The son of X's father's full brother or father's half brother from the same father; and

9. X's husband.


X's female heirs are:

1. X's daughter;

2. X's son's daughter, son's son's daughter, son's son's daughter, and on down;

3. X's mother;

4. X's grandmother (whether she is the mother of X's father or mother), great-grand-mother, and on up;

5. X's full sister, or half sister from the same father or mother;

6. X's wife.


Extended Family Members Who do not Normally Inherit

The following extended family members may no inherit from X's estate, except under the conditions to be discussed further below:

1. X's daughter's children (male or female);

2. X's mother's brother's sons;

3. X's X's sister's children, the sons or daughters of X's daughter's children, or the sons or daughters of X's sister's children;

4. X's brother's daughters - let them be full brother or half brother from the same father;

5. X's father's brother's daughters - let them be full brothers or half brothers from the same father;

6. X's father's half brother from the same mother;

7. X's mother's mother;

8. X's mother's brother or her sister;

9. X's father's sister; or

10. Anyone related to X through one of the above.