The Laws of Inheritance in Islam-II

In his Friday Sermon of 10 August 2018 (27 Dhul-Qaddah 1439 AH), Hadhrat Muhyi-ud-Din Al Khalifatullah Munir Ahmad Azim Saheb (atba) of Mauritius provides a magisterial survey of Islamic inheritance law. In this significant discourse, Hadhrat Khalifatullah (atba) elaborates on the the most important features of the normative framework of Islam on matters of inheritance succession and comprehensively explains the profound obligations on devout Muslims in this regard- of making clear distributive arrangements for smooth transitions in matters of succession. Acknowledging that the subject is vast, complex and delicate, Hadhrat Saheb (atba) underscores the need for careful handling of the question at the various levels "with honesty and Taqwah": individual believers need to draw up clear testamentary declaration (Will); influential/powerful legal heirs need to respect the rights of the vulnerable ones and also serve the pecuniary interests of other non-heir, but close persons of the deceased through gifts; the State/Jamaat officials need to ensure that justice is done to all parties involved. 

The Sahih Al Islam Blog has published the First-part of this vital sermon on August 14, 2018. Reproduced below are the second and final installment of the Two-part series:

THE WIFE’S CHILDREN FROM A PREVIOUS MARRIAGE

If a woman had children with another husband, and after divorce, Talaq, she contracts Nikah with another man, then the children of this woman from her previous marriage are not eligible to receive anything from the inheritance of their mother’s new husband.

INHERITANCE OF A LEGITIMATE CHILD

According to Shariah, a child born in the Nikah of his parents is a legitimate child and thus he shall inherit from his mother and father. Shariah acknowledges the legitimate pregnancy of a woman whose biological child is born between 6 months and two years.

Explanation : If a child is born five months after the date of the Nikah or more than two years after the death of the father (its mother’s husband), then the child shall not be legitimate for the father and thus shall not inherit from him. [But Allah knows best. It may be that Allah manifests exceptions and extraordinary miracles.

There is an anecdote of the legal judgement which was passed in the time of the caliphate of Hazrat Umar ibn Al-Khattab (ra) whereby a woman was brought for judgement because she had given birth to a child after six months. Hazrat Umar (ra) ordained to have her stoned [thinking that the woman must have committed adultery]. Therefore, the woman was taken away to receive her punishment. In the meantime, that case reached the ears of Hazrat Ali ibn Abu Talib (ra) and thus he came forward to meet Hazrat Umar (ra) and told him: 

“She does not deserve that. Allah, the Blessed, the Exalted, says in His Book, “Their carrying and weaning is thirty months,” (Al-Ahqaf 46: 16) and he said, “Mothers suckle their children for two full years for whoever wishes to complete the suckling.” (Al-Baqara 2: 234). Pregnancy can then be six months, so she does not deserve to be stoned.” (Muwatta Imam Malik).– When he heard this, Hazrat Umar (ra) acknowledged that he had made a wrong judgement.

Therefore, through this anecdote and the deduction and knowledge of Hazrat Ali ibn Abu Talib (ra) and the Quranic verses backing all this, it is clear that the minimum length of pregnancy is 6 months.

There are other opinions like those of Hazrat Aisha (2 years), among others, and the opinions of the four Imams: According to Imam Abu Hanifa of Kufa (2 years), Imam Malik bin Anas of Madina (4-5 years), Imam Muhammad Al-Shafi of Madina (4 years) and Imam Ahmad ibn Hanbal of Bagdad (4 years) along with their school of thoughts in Islam which shows that the pregnancy of a woman can vary from six months – the minimum length of pregnancy like indicated in the Quran (Al-Baqara 2: 234, Luqman 31:14 & Al-Ahqaf 46:16) – and 2 to 6 years (as the limit of a pregnancy for legal reasons). In other words, 6 months to 6 years, like Allah created the heavens and earth and the creation of man in six days, as per the days of Allah (the way Allah counts days). Besides, we see that Allah has mentioned in the Quran : “Allah knows what every female bears; and what the wombs fall short of (in gestation), and what they may add (or exceed more than the ordinary). With Him everything is in a fixed measure.” (Ar-Raad, 13 : 9).

But like I have told you, all these are exceptions, out of the ordinary occurrences, not the gestation of 9-10 months of gestation which is normal, and also essentially for legal purpose. And Allah verily encompasses all in His knowledge].

A child who is born in the Nikah of a man and a woman is legitimate and he shall inherit from his father unless the father denies paternity at the time of the birth of the child or the first times he sees him. If he says that the child is not his (and if he has proofs such as witnesses that the child is not his but that of his wife’s ex-husband or deceased husband before her Nikah with him, or if the child is a product of adultery, and like we have today, through new technologies such as the DNA which proves that the child is not his) then the child shall not inherit from him and shall inherit only from his mother only.

MARRIAGE ACCORDING TO THE CODE NAPOLEON CIVIL LAWS

According to the Napoleonic code, there are 2 types of civil marriages.

1. The system of legal community of goods and property
2. The system of legal separation of goods

Marriage under the system of legal community of goods and property means that all the goods that the husband has accumulated during his marriage (with the exception of inheritance) shall be divided equally between husband and wife (50:50). This complicates the life of a Muslim in terms of Shariah. According to Shariah, the wealth of a person cannot automatically go in the ownership of someone else with his prior consent. Marriage under the system of legal community of goods and property complicates the distribution of inheritance according to Quran and Hadiths. Even in the system of legal separation of goods, distribution of inheritance is not as per the laws of the Shariah. But in the system of legal separation of goods, the wealth of the husband remains for himself and the wealth of the wife remains in her custody. The laws of Allah is different from the mundane laws regulating marriages and inheritance, and the believers should act as per the laws of Allah and His Messenger (pbuh). Despite the complications of the mundane system, believers should obey Allah and His Messenger (pbuh) in respect to inheritance.

Therefore, if someone has contracted a civil marriage, he should therefore prepare a legal Will at a notary’s office for the distribution of his wealth (as per Quran and Hadiths). The distribution of inheritance is more (complicated and) detailed, but I have given you the essentials of it, that which is most important.

GIFTS GIVEN DURING ONE’S LIFETIME

A share of wealth given to someone whom you have deep regards for and whom you know since long is a gift and not a share of inheritance. If you have given a share of your wealth/ property to one of your children during your lifetime, you should therefore give all your children an equal share of the gift and correct any injustice. In the distribution of gifts, all children, whether male or female receive equal shares. There is no difference between any one of them. They all receive equal share of gifts.

If one child had received more than his other siblings through your financing of his study and you have given him a piece of land or built his house, you should therefore compensate this by giving the other children the same quantity spent on the other child before death overtakes you. If someone has already died before correcting this (distribution of gifts), then the heirs cannot claim anything anymore. Now, nothing of what he had done during his lifetime shall be taken into consideration, except for the commandments of Allah in respect to the distribution of his inheritance whereby it shall be divided and given to the heirs in the proportions established in the Quran. There is only one exception in respect to a living parent who can prefer a child over another child by giving him/ her a gift which he has not given to his other children: this happens when this child has spent his life to dedicate himself more to Deen (religion – of Islam) or in the teachings of Deen-i-Islam (to others). Hazrat Abu Bakr (ra) had given his daughter Aisha (ra) a gift which he had not given to any of his other children. (Muwatta of Imam Malik).

DISHONESTY OF AN HEIR AGAINST HIS OWN SISTER OR VICE-VERSA

Very often there are cases where a poor parent having a small plot of land does not know how to distribute it among his heirs, because heirs outnumber the wealth available. The great error/ wrong which a parent can commit if he/ she has one or more sons and one or more daughters, therefore he tries to convince his daughters without any written legal document to sign off their claim on the land and to give their shares to their brothers with only the verbal “assurance” that those brothers shall at a later date give them money in exchange. And the reason given for such (wrong) distribution of inheritance is that the girls shall get married and go their husbands (partaking in the goods of their husbands). This kind of settlement is done verbally and when the brothers needed the signatures of their sisters to acquire property on their names, they tried to convince sweetly their sisters to do so, and when signatures have been put on the legal documents in the notary’s office, and the boys have got their contracts and become proprietors of the land, they now make the deaf when it comes to reimburse their debts towards their sisters. This situation can apply vice-versa (i.e. when a brother signs to give property to his sisters (in exchange for money/ his rights). The victims of this kind of “settlement” expect to receive their shares in money form but alas, the brothers act treacherous towards them or vice-versa.

Unfortunately, when the sister or sisters ask for their Haqq (rights), the money which their brothers owed them, therefore the situation deteriorates and those brothers insult their sisters. These kinds of siblings know only their problems, and only want to acquire wealth for themselves and their children, as if it is only them who has to gain and shape up the future of their children. Verily these kinds of stolen inheritance does not last long! It shall be reduced to dust and those in the wrong shall have to present before Allah (swt) one day for all that they have done (injustices committed). This is indeed great dishonesty which a brother does to his sister or vice-versa (if ever a brother signs to give to his sister). This is what is called theft, stealing the rights of their sisters who are also heirs of the same parents. In that case, these brothers should write their wills and prepare legal papers to clear their debts vis-à-vis their sisters, to pay them back their due/ right. And if in the situation that they do not readily have the money, then they must precise a final time-limit to reimburse their sister/s. Otherwise, if they have the money, the other heirs should not sign any document (prepared at the notary’s) unless the money is given cash to those sisters. Those sisters should receive payment of their rights.

There are lots of such cases in Mauritius and also in other countries. The consequences of the wrongdoers, those who steal the rights of their sisters or vice-versa, shall be grievous before the sight of Allah (swt). I put a Hadith before you which is found in Bukhari Shareef:

Narrated Muhammad bin Ibrahim bin Al-Harith: from Abu Salama bin Abdur-Rahman who had a dispute with some people on a piece of land, and so he went to Aisha (ra) and told her about it. She said, “O Abu Salama, avoid the land, for Allah's Messenger (pbuh) said, ‘Any person who takes even a span of land unjustly, his neck shall be encircled with it down seven earths’.”

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[All that I am saying in my Friday Sermon today are replies to the questions which I often receive through emails, phone messages or calls. That is why by the grace of Allah I find it necessary to expound on this subject – replying those questions – so that humanity as a whole, and the Muslims in particular, can benefit from it and can know how to distribute their wealth as their inheritance, if ever they did not know how to go about it or if they did not think about it before or made some errors in writing their Will, etc.

Therefore, this Friday Sermon can help you to know the subject more in detail and (when acting upon it) shall derive the love of Allah, not His wrath, for one day we all shall have to account before Him for all these things. We need to bear in mind that all these wealth are really the property of Allah alone; nothing really belongs to us in this temporal life. In this world, we are temporary. We shall leave all these tomorrow. Only a few metres of cloth shall be used to cover us; nothing of what we used to enjoy on earth shall accompany us. It is only our good and bad deeds which shall accompany us. The rest shall remain on earth. Therefore, why act dishonestly? Why fight/ dispute etc.? All these disputes and display of dishonesty are futile because we are only fuelling the wrath of Allah upon us in this temporal life and in the life to come.]

THE INHERITANCE OF A RUNNING BUSINESS

Upon the death of someone, his heirs take ownership of his wealth/ goods/ properties etc., meaning that in each thing that he has left behind, his heirs have definite shares in it (e.g. 12.5% of his house, business etc.).

But if the heirs come to an agreement, they can therefore distribute this wealth mutually as per their wishes. But it is important that they take ownership of their shares. It shall be unjust to keep a wealth without distributing it when the heirs are asking for their shares in it. That is why wealth of the deceased must be distributed to all those who deserve their shares and to make them take ownership of their wealth – to make them become owners in the real sense.

If there is no consensus (mutual understanding) among the heirs, therefore the overall wealth should be evaluated and they be given their money as per the shares/ fraction they hold. If a property is indivisible (which cannot concretely be divided), therefore, it must be sold and the money be divided among the heirs.

When the owner of a business has died, an inventory of the value of his stocks, and the day-to-day running of the business and the value of the fixed assets such as the business’ building etc. be taken into account.

And thus the heirs can decide to hire someone who shall act as their representative and run the business of their behalf and keep accounts of the business transactions. But after a family meeting, each heir must be given his proper share without fault. The business can be transformed into a company where each heir can partake of his shares in it. The one who works for the business/ company from among the heirs can receive a salary in addition to his dividend or profit and the one who does not work for the business/ company shall only receive his share of profit or dividend at the end of each month or each year. Insha-Allah.

THE INHERITANCE OF AN ORPHAN

If a child is orphaned, therefore it is the duty of an elder which is well-versed in religion (Islam) to preserve his wealth (inheritance) till he reach his maturity (around 21 years old). If the wealth is in cash, it would then be preferable to buy a plot of land on the name of the child so that depreciation may not affect his wealth.

When he becomes mature enough to manage his money and property, then his wealth must be handed over to him. The guardian of the child can take part of that money for the expenses of the child (while he is still in his guardianship). There is no Zakaat on that money/ property till he becomes baaligh (mature/ adult).

THE INHERITANCE OF AN ADOPTED CHILD

An adopted child is not the heir of his adoptive parents according to Shariah. Therefore, the adopted child has no rights on the inheritance of his family of adoption. But the adoptive parents can give him a gift during their lifetime or make a Will bequeathing him to a maximum of 1/3 of their wealth (in their respective wills). According to Shariah, when adopting a child, it is best to adopt him when he is still a baby, for in this way he shall grow up as a Mahram in the house. But if one adopts a child when he is already grown-up, that child shall be like a stranger in the house.

THE IMPORTANCE OF WRITING A WILL BEFORE IT IS TOO LATE (I.E. BEFORE DEATH)

In a Hadith transmitted in Tirmidhi Shareef, Hazrat Abdullah ibn Umar (ra) narrated that the Messenger of Allah (pbuh) has said: “It is not right for a Muslim man to spend two nights, having what he would will, without having his Will written with him.” [This Hadith has also been recorded by Imam Bukhari & Muslim].

Some Muhaddithins have applied this emphasis on writing Wills when there is a danger, a high probability that there shall be hot disputes concerning inheritance after a person’s death. Others have taken it as a recommendation and a precaution to be taken (before death overcomes someone). If you know there shall be disputes on inheritance after your death, then it is very important that you write down your Will to avoid such disputes. And you would have moreover discharged your duty. And it is obligatory to write a Will as per the designated shared as mentioned in the Quran.

Therefore, it is important to put the distribution of inheritance in writing to avoid discord in the family after one’s death. It is very sad to see how many families have broken ties with one another due to a wrong distribution of inheritance.

Insha-Allah, I hope that with this Friday Sermon on the distribution of inheritance, all brothers and sisters shall have an idea on the way that they should distribute their wealth (for inheritance). It is not easy to delve more profoundly on the subject in this Friday Sermon. It is indeed a very delicate subject, and not at all easy to expound except with the help of Allah (swt), and indeed this subject is very vast.

Thus, Insha-Allah, it is obligatory for each Muslim that he distributes his wealth among his heirs according to the Holy Quran and Hadiths. Insha-Allah, may Allah help us to accomplish our duties with honesty and Taqwa. Insha-Allah, Ameen.

To read the First Part of the Discourse, click here.