Islamic Inheritance Laws and Calculations

Islamic Inheritance

تعليم املرياث بأسلوب حديث MUFTI KALEEM MUHAMMAD JAAMIA MADINATUL ULOOM

1 Islamic Inheritance Laws and Calculations

Islamic Inheritance Laws and Calculations

Mufti Kaleem Muhammad JAAMIA MADINATUL ULOOM

2 Islamic Inheritance Laws and Calculations

Introduction بــــــــسم هللا الرحـــــــمن الرحيــــــــم

حامدا و مصليا و مسلما

Islam is a complete and comprehensive way of life. It encompasses every aspect related to human life. Its laws and injunctions are filled with divine justice and wisdom. The laws of inheritance is one of the most important branches in Islamic Jurisprudence. This branch of Islamic Knowledge is derived directly from the Holy Qur’an and the .ﷺ authentic traditions of the Holy Prophet The knowledge of Inheritance in Islam is of fundamental says, ‘Knowledge is of three ﷺ importance. The Prophet of Allah fundamental types and everything else is regarded as extra; the clear Aayaat (verses), the Established Sunnah (practices of the and the Fair Share (Inheritance). In another Hadith the (ﷺ Prophet said: Learn the knowledge of inheritance and ﷺ Prophet of Allah teach it to the people for indeed it is half of knowledge. The literal meaning of the word half is not meant, however it emphasizes the status and importance of the knowledge of Inheritance. The implementation of the laws of inheritance in Islam is Fardh (compulsory). There are no differences of opinion regarding its compulsion. Negating the compulsion of Inheritance in Islam and its method of distribution is clear Kufr (disbelief). This injunction of the Shariah is just as important as the other injunctions of the Shariah. To understand the seriousness of this branch of the Shariah look closely at the pillars of Islam after Imaan. (a) Salah (b) Zakah (c) Fasting (d) Hajj. These pillars are the foundation which supports the

3 Islamic Inheritance Laws and Calculations entire of Islam. If anyone negates the legislation or the compulsion of anyone of these pillars he becomes a Kafir (disbeliever).1 made five daily Salah compulsory. However the amount of ﷻ Allah units performed (Rak’ah) for each Salah is not mentioned in the Quran. Similarly the amount of Zakah to be paid is not mentioned in the Quran. Regarding fasting, if a person cannot fast2 it is obligatory upon him to give Fidya, however its amount is not mentioned in the Quran. One of the compulsory elements in Hajj is Tawaaf (Ziyarah) except that the amount of rounds (cycles) around the Ka’bah is not mentioned in the Quran. The details however, are mentioned and .ﷺ explained in the Sunnah of the Prophet took it upon himself and ﷻ As for the institute of Inheritance, Allah explicitly mention the Heirs of the deceased but ﷻnot only did He moreover stipulated clearly the amount (shares) each and every Heir will inherit. After mentioning the heirs and stipulating the :mentions ﷻ shares Allah These are the boundaries set by Allah (regarding Inheritance). And whoever obeys Allah and His Messenger (in implementing the laws of Inheritance) He (Allah) will enter him into gardens through which rivers flow therein to abide, and this is the greatest victory. mentions the consequences of those who fail to ﷻ Thereafter, Allah implement and adhere to the laws of the Shariah; And whoever disobeys Allah and His Messenger and transgresses His limits (laws of inheritance) He will put him into the Fire to abide eternally therein and he will have a humiliating punishment. mentions in the Quran the reward for those who have Imaan ﷻ Allah and do righteous deeds; and this is the Jannah which you are made to inherit for what you used to do (righteous deeds).

اذا استمر على انكاره بعد أن قامت عليه الحجة 1 مرض مستمر الى الموت 2

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However, failure to adhere to the laws of inheritance can result in one’s deprivation of his inheritance in Jannah. The Messenger of ,said: Whoever fails to distribute the inheritance of his heirs ﷺ Allah Allah will cut out his inheritance from Jannah on the day of Judgement. The aforementioned verses of the Quran and Ahaadith of the clearly indicates towards the importance of ﷺ Messenger of Allah Inheritance. Unfortunately, this branch of Islamic knowledge is often neglected by the general Muslims as little importance is given to its laws and distributions. There are many people who are considered religious and pious however they are the most reluctant and hesitant when it comes to implementing the laws of inheritance. If a person fails distribute the inheritance to whom it rightfully belongs ﷻ to, or fails to distribute to an heir the amount stipulated by Allah then he has committed a Major sin. This is because he has violated and committed an act of injustice ﷻ an explicit command of Allah heirs).The only) ﷻ and oppression upon the servants of Allah atonement one can make is to give what is rightfully due thereafter seek Allah’s forgiveness. have a ﷻ Furthermore, such atrocities to the divine laws of Allah direct bearing on one’s Ibadah (worship) i.e. if a person wrongfully withholds the inheritance of an heir and thereafter utilizes it for himself, he will be consuming Haram. The consumption of Haram hinders the acceptance of one’s Ibadah. Moreover, it makes the body said: Every ﷺ fuel for the fire of Jahanam. The Messenger of Allah flesh nourished by haram is deserving of the fire. has strongly emphasized on the ﷺ For this reason the Prophet importance of acquiring and implementing the laws of inheritance. He also said that from the first things to be taken away from his Ummah is the knowledge of Inheritance. In another Hadith, reported by Abdullah bin Mas`ud (RadhiAllahu'anhu), he said that the

5 Islamic Inheritance Laws and Calculations

said to me, “Acquire the knowledge and impart ﷺ Messenger of Allah it to the people. Acquire the knowledge of inheritance and teach it to the people. Learn the Qur’an and teach it to the people; for I am a person who has to depart this world. And the knowledge will be taken away and turmoil will appear to such an extent that two people will not agree in regard to a case of inheritance distribution and find none who would decide between them.

I pray that Almighty Allah Ta’ala accept this small effort and that He give us the ability and guidance to adhere to His commands and refrain from His prohibitions.

Mufti Kaleem Muhammad Jaamia Madinatul Uloom Trinidad and Tobago

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Chapter One Al-Meerath (Islamic Inheritance) is a knowledge, based upon principles, by which one can determine the legal heirs of the deceased and the allotted share of each heir. Subject matter: The estate of the deceased and the eligible heirs. Aim and objective: To distribute to the heirs what is rightly due to them from the estate of the deceased.

Definition of an Heir: An Heir is a person who is entitled to inherit from the estate of the deceased because of his/her connection to the deceased through blood relations or marriage (i.e. husband or wife). Therefore the in-laws of the deceased are not included nor those connected through fosterage.

Arkaan (components): There are three essential components: (a) The deceased (b) The heirs (c) The estate

Estate: The estate of the deceased refers to all the assets that were in the possession of the deceased at the time of his demise in whatever form. This includes cash, shares, jewelry, ornaments, furniture, appliances, clothes, receivable-debts, livestock, poultry, agricultural products, raw materials, goods in production, finished- goods, goods in inventory, land, houses, buildings, factories, shops, incomes, received pension, incoming revenues from other retirement and medical schemes etc. Mas`alah: Death-Benefits (after demise), payable by Pension Funds and other types of retirement and medical schemes, whether it be voluntary or mandatory are not subjected to the laws of inheritance

7 Islamic Inheritance Laws and Calculations i.e. it will not be included in the estate of the deceased. The designated beneficiaries stipulated by the company or government will have all rights to the benefits, regardless if they are heirs or not. NB: The reason why death-benefits do not comprise of the estate and by extension not subjected to the laws of inheritance is because it was not in the possession of the deceased nor did he have any claim to it in his lifetime and this is the view held by Mufti Taqi and other contemporary Jurists.3 حفظه هللا Usmani

NB: A more precautionary view is to distinguish between voluntary and mandatory schemes. Regarding the former, the amount contributed by the deceased will be subjected to the laws of inheritance when received and the remainder will go to the designated beneficiaries. As for the latter the entire amount will go to the designated beneficiaries and will not be subjected to the laws of Inheritance. Shuroot (conditions): There are three necessary conditions: (a) Certainty of the death of the deceased (b) Presence of the heir (i.e. being alive) at the instance of the demise of the deceased. (d) Absence of all impediments. NB: To acquire the knowledge of Islamic Inheritance is Fard al- Kifayah (collective obligation) and the implementation of the laws of

3 Contemporary Fatwaa by Mufti Taqi Usmani (see under-Entitlement To Death Benefits Payable by Pension Funds). Some scholars however, are of the opinion that these benefits are subjected to the laws of inheritance as it comprises of the estate. Others are opinion that if contributions were made voluntarily it becomes part of the estate while others are of the opinion that in mandatory contributions the portion paid by the employee forms part of the estate and the other is regarded as a gift.

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Islamic Inheritance is Fard al-Ain (individual obligation) upon those who are entrusted with the obligation. When a person dies, there are four rights connected to his estate, its sequence is as follows; (1) Funeral Expenses (2) Payments of Debts (3) Wasiyah/Will (4) Inheritance

1-Funeral Expenses:

First and foremost, the shrouding and burial expenses are deducted from the deceased’s estate even if it requires that the entire estate be spent. Funeral expenses should be moderate. If however, these expenses are paid for voluntarily, then there is no deduction from the estate of the deceased.

2-Payments of Debts

Debts are of two types; Debts owed to people and Debts due to .ﷻ Allah (a) Debts owed to people, such as loans, monies owed from the purchase of items etc. Death does not absolve a person of debts accrued in his lifetime. He will be accountable for all un-paid debts. Thus it is obligatory upon the heirs/executers of the will to re-pay these debts from the estate of the deceased whether or not the deceased made bequest for it. These debts will be deducted from the estate of the deceased irrespective of its amount, even if it requires that the entire estate be exhausted in the process. Debts of this type however, will only be deducted in the condition that they are

9 Islamic Inheritance Laws and Calculations recognized debts. If there are multiple debts in excess of the value of the estate then the estate will be divided amongst the creditors according to their proportions.

NB: This first type of debts will include; utility bills, taxes, fines, fees, rent payments, unpaid wages, loan payments, credit card and other formal or informal debts. Outstanding Monetary Religious) ﷻ b) Debts due to Allah) Obligations), like any other debts, these debts are not cancelled upon death rather the obligation still remains. This type of debts however, will only be deducted from the estate if the deceased left a bequest. If the deceased did not bequest for the fulfillment of these debts or a bequest was left except that it was not sufficient to cover the amount of debts then the heirs or anyone else may pay from their own wealth voluntarily. If a bequest was made then only that amount equating to a third of the remaining estate will be executed. If it amounts to more than a third the permission of all heirs must be sought. In summary, it is obligatory to pay the debts of the first type even though a bequest was not made as opposed to the second type i.e. is will only be obligatory if the deceased made a will. Furthermore, its deduction from the estate is obligatory regardless of its amount as opposed to the second type i.e. only that which amounts to one third will be obligatory. Any excess of one third will require a consent of all heirs. 3-Wasiyah (Bequest/Will)

A Wasiyah refers to the instructions and directives of the deceased to be executed after his demise. However, only those directives which are monetary in nature will have a bearing on the laws of

10 Islamic Inheritance Laws and Calculations inheritance. In executing the monetary-bequest, the following must be taken into consideration: (a) It does not exceed a third of the remainder of the estate (after deducting funeral expenses and debts) (b) It is not given to an Inheriting Heir. It can however, be given to a Non-Inheriting Heir. A non-inheriting heir is a blood relative who was not fortunate enough to inherit due to the presence of another heir who was more deserving of inheritance than him/her. (c)It is not given to a cause contrary to the teachings of the Shariah. Masàlah: If the Wasiyah amounts to more than a third of the remainder of the estate then whatever exceeds one third will not be executed except that there is a general consent from all the heirs. NB-If there minors (non-Baligh) from amongst them then their consent would not be regarded. Masàlah: If the deceased does not have any heirs it is permissible for him to make Wasiyah of the entire estate.4 Masàlah: If the Wasiyah is made to an inheriting heir it will not be valid unless there is a general consent from all the other heirs as mentioned above. If there is general consent then this particular heir would receive shares from the estate of the deceased on account of Wasiyah and also receive shares through inheritance. Masàlah: If the deceased, in his/her lifetime made a Wasiyah to a stranger (non-heir), thereafter marries that person then that

(333 /7) بدائع الصنائع في ترتيب الشرائع 4 .وإن لم يكن له وارث أصال: تصح من جميع المال، كما في المسلم، والذمي

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Wasiyah will be invalid as he/she (spouse) is now a legal Heir. Except in the case where the spouse (wife) is Jewish or Christian.5 Masàlah: If the deceased left behind a bequest for his/her surviving spouse authorizing him/her to the entire estate then the surviving spouse will be legally entitled to the entire estate provided that there are no inheriting heirs besides the spouse.6 Masàlah: If the deceased made a wasiyah for his non-inheriting heir e.g. his grandson, thereafter his only son passes away before his demise then the wasiyah made to the grandson will not be valid as he is now an inheriting heir. Masàlah: The status of the beneficiary will be cnsidered at the time of the demise of the deceased and not at the time the wasiyah was initiated. Therefore, if the deceased bequeathed to an inheriting- heir, for example his brother, (in the absence of his father and a son) thereafter he was blessed with a son before his demise then wasiyah will be valid as his brother in is no longer an inheriting-heir due to the presence on the son.7 Masàlah: The Shariah permits Wasiyah between Muslims and non- Muslims i.e. Wasiyah can be given to a non-Muslim and also can be received from a non-Muslim. Inheritance on the other hand will not

(337 /7) بدائع الصنائع في ترتيب الشرائع 5 إذ أوصى المرأة أجنبية، وهو مريض أو صحيح، ثم تزوجها إنه ال يصح

(222 /2) الجوهرة النيرة على مختصر القدوري 6 وكذا إذا أوصت بذلك لزوجها كان المال كله له نصفه ميراثا ونصفه وصية؛ ألنه ال يستحق الوصية قبل الميراث بخالف األجنبي ألن الزوج وارث وإنما جازت له الوصية؛ ألنه ال وارث لها تقف صحة الوصية على إجازته (117 /6) الفتاوى الهندية .ولو أوصت المرأة بنصف مالها لزوجها ولم توص وصية أخرى كان جميع مالها للزوج النصف بحكم الميراث والنصف بحكم الوصية

(337 /7) بدائع الصنائع في ترتيب الشرائع 7 ثم الشرط أن ال يكون وارث الموصي وقت موت الموصي ال وقت الوصية حتى لو أوصى ألخيه وله ابن وقت الوصية، ثم مات قبل موت الموصي، ثم مات الموصي لم تصح الوصية؛ ألن الموصى له، وهو األخ صار وارث الموصي عند موته ولو أوصى ألخيه وال ابن له وقت الوصية، ثم ولد له ابن، ثم مات الموصي صحت الوصية؛ ألن األخ ليس بوارثه عند الموت لصيرورته محجوبا باالبن

12 Islamic Inheritance Laws and Calculations take place between a Muslim and non-Muslim as stated in the hadith because of the differences in religion. Therefore if a ﷺ of the Prophet bequest was not made to the Muslim relative he is not entitled to any portion of the estate of his non-Muslim relative i.e. he cannot legally claim. If however, the heirs of his non-Muslim relative give consent to his inheritance then it would be permissible for him to take from the estate. This however, would not be regarded as inheritance, rather it would be regarded as Hibah (grant/gift). NB: Wasiyah can be made to Specific Individuals (Zaid, Umar etc.) and also for noble and righteous deeds (seeking the pleasure of in the ﷻ such as the payments of debts of due to Allah (ﷻ Allah lifetime of the deceased, such as unpaid Zakah, compulsory Hajj, unpaid Kafaraat, Fidyah etc. It can also be made to Organisations (Masjid, Islamic Institutes, Hospital, Charitable organisations etc. and other noble and just causes (feeding, clothing, sheltering the poor, building Masjid, financing a student of knowledge, aiding refuges and victims of oppression etc.) Wasiyah Exceeding a Third Mas`alah: If a Wasiyah was made to an heir or in excess of a third of the estate then the permission of all heirs must be sought. The consent of the heirs is only regarded after the demise of the deceased. Thus if all the heirs granted permission in the lifetime of the deceased it is permissible for them to revoke their consent after his death. Mas`alah: If after the demise some of the heirs give consent then excess will only be taken from those heirs who granted consent and the shares of the remaining heirs will not be affected.8

8 Refer to Tatarkhaniyah vol19 pg387

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Mas`alah: If Wasiyah, exceeding a third was made only to specific individuals then all will have a proportionate share from the third i.e. no one will be deprived. Example: a person made Wasiyah amounting $1000 for individuals as follows; Ahmad ($100) Saeed ($200) Qadeem ($300) Riaz ($400). However a third of the remaining estate amounts to $500. The third will be divided proportionately amongst the four individuals using this formula:

Individual Wasiyah Approved Wasiyah Total Wasiyah

Ahmad Saeed Qadeem Riaz

ퟏퟎퟎ ퟐퟎퟎ ퟑퟎퟎ ퟒퟎퟎ × 500 =$50 × 500 =$100 × 500 =$150 × 500 =$200 ퟏퟎퟎퟎ ퟏퟎퟎퟎ ퟏퟎퟎퟎ ퟏퟎퟎퟎ

Mas`alah: If the Wasiyah was made for religious causes and religious obligations preference would be given for those things .(ﷻwhich were obligatory upon the deceased (i.e. Debts dues to Allah Hence, performance of a compulsory Hajj, payment of Zakah, Kafaraat, and Fidyah for missed Fast and missed Salah will be given preference over donations for Masjid, Madrasah etc.

NB: Monetary religious obligations due to Kafarah will be given preference over those due to oaths & and vows. Mas`alah: If the Wasiyah was made to Specific Individuals as well as for religious causes and obligations (exceeding one third, without consent) then all will proportionately share in the third. Mas`alah: If the beneficiary (i.e. the recipient of the wasiyah) died after the death of the deceased (testator) then it will be transferred to the heirs of the beneficiary.

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NB: If however he died (beneficiary) before the death of the deceased the wasiyah will be void and thus will not be transferred to his heirs. Mas`alah: If a Wasiyah was not made, however the heirs decide to benefit the deceased by performing Hajj on his behalf, giving charity, feeding the poor etc. then the financial expenditures for such undertakings cannot be taken from the estate of the deceased rather from personal earnings of the heir/s or from the share of the heir/s after the distribution of the estate. Mas`alah: It is not permissible to take money from the estate of the deceased for the traditional and customary wake as it is not part of the funeral. Furthermore, it is a baseless practice and has no place in Islam. It is a complete waste of time and money and does not benefit the deceased in anyway, moreover it is burden upon the family of the deceased. Time and efforts should be spent on those things that are of benefit to the deceased and a source of comfort upon the family members. NB: The customary Wake, three-days, forty-days and one-year gatherings staged after the demise of a person is a baseless custom in Islam and thus is strictly prohibited. These gatherings are clear innovations and misguidance and do not attract the mercy and blessings The Scholars of Islam are unanimous that these gatherings .ﷻ of Allah and ceremonies are clear deviations and innovations as they are not from nor any of his ,ﷺ the teachings and practices of the Blessed Prophet Noble Companions, nor any of the Tabi’een, nor any of the Tabi' al- Tabi'een, nor any of the illustrious Fuqaha, nor any of the great Muhaditheen, nor any of the Imams of the followed schools of Islamic Jurisprudence nor any of the rightly guided scholars that came afterwards. These gatherings being an innovation in Islam, do not

15 Islamic Inheritance Laws and Calculations benefit the deceased in any way as it is an action rejected and unacceptable and consequently void of rewards and blessing. NB: That which was not regarded as an act of worship at the time of ﷻ or at the time of his noble companions (May Allah ﷺ the Prophet be please with them) will certainly not be regarded as an act of said; there is not an action that ﷺ worship in our time! The Prophet will bring a person close to Jannah (i.e. earn a person rewards) except that I have instructed it. NB: It is not permissible to stage these ceremonies even if the deceased made Wasiyah for it. If it was undertaken by the family members of the deceased without the consent of the deceased then those family members will be sinful and not the deceased. If such innovative practices are prevalent in one’s family or the society then it is incumbent that one expresses his disapproval whether written or oral.

Guidelines in Preparing an Islamic Will A will refers to testamentary instructions (oral or written) to be executed on behalf of the deceased person (legator) upon his death by his executors. The preparation of an Islamic Will is of upmost importance especially for those living in non-Muslim countries. The failure to prepare a will can result in distribution of the estate based on the law of the land and not the laws of Islam. Furthermore, as for the Islamic rituals after death, if a proper will is not prepared then customs and innovative traditions will be given precedence over the Thus it is very important to prepare a will.ﷺ Sunnah of the Prophet according to the laws of Shariah in all aspects, both monetary and said; "It is not right for any Muslim ﷺ non-monetary. The Prophet who has something to be given as a bequest to spend two nights without writing a will about it".

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The following should be stipulated in the will of the legator: 1. Funeral and burial arrangements should be done strictly adhering to the laws of the Shariah. 2. Absolutely no innovative ceremonies and observances should be conducted upon my death, or on my body, or at the grave site. 3. Under no circumstances should the burial be delayed, preferably the same day if possible. 4. Ensure that all debts are paid, except for those creditors who wish to discharge what is owed to them. -e.g. unpaid ﷻ Outstanding monetary obligations due to Allah .5 Zakah, Fidyah, Kafarah etc. The payments of outstanding religious obligations will be regarded as Wasiyah i.e. that amount in excess of a third of the remaining estate will not be executed (except with the permission of the heirs). Therefore only if a person, after repaying his debts, has enough money to cover his monetary obligations due only then should he make Wasiyah for individuals and ﷻ to Allah organisations. This is because the fulfilment these debts are obligatory upon the deceased. If however, the testator bequeathed the fulfillment of religious obligations as well as to individuals, organisations etc. in the condition that a third of the remaining estate is insufficient to finance all of the bequests made, then all the bequeathed will proportionately share in the third. This will mean that some religious obligations will remain unfulfilled as the money will be used to finance other bequests. NB: If the cost of a bequeathed Hajj is more than a third or if fulfilled other bequests would not be fulfilled due to limitation of finance then the Hajj should be undertaken from a location closer to Makkah as to reduce cost. (The same applies to a bequeathed Qurbani) 6. Wasiyah to individuals, organisations and services.

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NB: If ones heirs are needy then it is preferable that Wasiyah amounts to less than a third of the remaining estate. If however the heirs are well-off then it is preferable bequest amounts to a third.9 7. That the estate of the deceased (after deducting funeral expenses, debts and wasiyah) be shared and distributed amongst the deserving heirs according to the laws of Islamic Inheritance. 8. There shouldn’t be any unnecessary delay in the distribution of my estate. NB: The testator (deceased) should ensure that the executor be a reputable Islamic Institute or Scholar of Islam versed in the laws of Inheritance and is of piety. 9. The testator may humbly request his heirs to grant consent in the event that his obligatory religious debts exceed a third of the remaining estate. Heirs will not be sinful if they refuse to give consent. NB: The testator, at any time, has the right to alter, change or annul his last will and testament.

4-Inheritance

This is the portion on the estate which is solely reserved for the heirs of the deceased. It is that amount which remains after funeral expenses, debts and Wasiyah have been deducted. If it occurs that, after deducting funeral expenses and debts the estate of the deceased becomes totally exhausted then there will not be any inheritance and thus heirs will not receive anything from the estate. It is not proper that the distribution of the estate be delayed unnecessarily, especially if there are heirs who are requesting their shares immediately.

قال عليه السالم إِ َّن ك أ ن ت ذ ر و رث ت ك أ غ ِني ا ء خ ي ر ِم ن أ ن ت ذ ر ُه م عا لة يت ك َّففُو ن ال َّنا س )البخاري( 9

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Masàlah: In Islam, when a spouse dies, his/her wealth and property do not automatically transfer to the surviving spouse. Rather the surviving spouse will receive his/her stipulated share of the estate after deducting funeral costs and outstanding debts. Masàlah: If the deceased, in his lifetime gifted his property or a portion thereof to an heir then firstly, that gifted portion would be excluded from the estate of the deceased. Secondly, that gifted portion cannot be regarded as a portion in lieu of that particular heir’s share of inheritance from the estate of the deceased. E.g. A father of two sons, possessed two houses and two vehicles. He gave one of the houses and one of the vehicles to the elder son. Thereafter the father passed away. The house and vehicle which he granted to the elder son will not be included in his estate as its ownership was transferred at the time of gifting. Masàlah: If the deceased person, in his lifetime put aside some money/assets for a specific cause (e.g. the undertaking the Hajj pilgrimage, building of a Masjid, saving for a particular individual etc.) then such assets will be part of his estate as it was in his ownership at the time of his demise. Example: A person dies leaving behind an estate of $18,000.His funeral expenses cost $2,000. His total debts amounts $4,000 and made he a Wasiyah amounting to $5,000.

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Estate of $18,000

Funeral Expenses $2,000 (Funeral Expenses) Debts $8,000 $4,000 (Inheritance) Wasiyah (Debts)

$4,000 Inheritance (Wasiya)

Explanation: After deducting funeral expenses and debts the estate remains with $12,000. The Wasiyah is $5,000, this amount exceeds one third of the remainder of estate (i.e. after funeral expenses and debts). Thus in a situation where general consent was not granted only that amount of the Wasiyah equating to one third of the remainder of the estate would be executed, in this case $4,000.

Impediments to Inheritance Those eligible to inherit may be disqualified from inheriting due to certain impediments. There are two main factors that disqualify a person from inheriting: 10 (1) Homicide (Qatl): The homicide which impedes the killer from inheriting includes voluntary homicide (murder), involuntary homicide (manslaughter) and any form accidental killing. (2) Disbelief (Kufr): If any of the heirs are non-Muslims or was not a Muslim at the time of the death then he/she would not inherit from the estate of his Muslim deceased relative.

10 In fact, there are four factors, two were not mentioned because of its irrelevancy i.e. Slavery and Difference in Daar (Lands of the Kufaar and Lands of the Muslims). This however applies to the inheritance amongst non-Muslims, as for Muslims, differences of Daar does not affect Inheritance.

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NB: A Muslim can inherit from his non-Muslim relative if he or she bequeathed for him. If however, no bequest was made he may still inherit if the heirs of the non-Muslim decease give consent and in such a case it will be regarded as Hibah (gift) and not inheritance.

Chapter Two Types of Heirs The estate which remains after funeral expenses, payment of debts and fulfilment of bequest will be distributed amongst the Heirs strictly in accordance to the laws of Shariah stipulated in the Quran, .(and Ijmah (scholarly consensus ﷺ Sunnah of the Prophet of Allah There are three categories of heirs; (1) Primary Heirs (Ashaabul Furoodh) (2) Secondary/Residuary Heirs (Asabah) (3) Tertiary Heirs (Dhawul Arhaam)  The Primary Heirs are those family members whose shares are fixed and stipulated by the Shariah. Primary Heirs will receive their allotted shares firstly.  The Asabah (Secondary Heirs) do not have fixed shares, rather they receive whatever remains from the estate of the deceased after Primary Heirs receive their allotted shares. They are also called residuary heirs.  The third category are regarded as non-heirs since they stand little or no chance of inheriting. This is because they would only inherit in a case where all members belonging to category one and two cease to exist (with the exception of the spouse).

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Primary Heirs (Ashaabul Furudh) This group comprises of twelve individuals, 4 males and 8 females.  Males: Husband, Father, Paternal Grand Father, Maternal Half Brother.  Females: Wife, Mother, Grand Mother (both Paternal and Maternal Grand Mothers), Daughter, Grand Daughter (son’s daughter), Full sister, maternal half-sister, paternal half-sister. Shares for primary heirs are all stipulated in the Holy Quran, these ퟏ ퟏ ퟏ ퟐ ퟏ ퟏ shares are as follows: , , , , ퟐ ퟒ ퟖ ퟑ ퟑ ퟔ In order to calculate and solve any Inheritance Problem one must be able to determine the Base-Number. The base-number reflects how many portions the estate of the deceased will be divided into. In order to determine the base-number it is important to know the four relations that exist between any two numbers. The four relations are: Tamathul, Tadakhul, Tawafuq and Tabayun.

Tamathul Tadakhul Tawafuq Tabayun This relation This relation This relation exists When two exists when exists when one when the relation numbers are so two numbers number is a between two different and (denominators) multiple of the numbers is neither variant in that 1 1 are identical to other e.g. ( & ) Tamathul nor none of the three each other e.g. 6 3 Tadakhul however aforementioned 1 1 ( & ) they share a relations exist 6 6 common factor then its relations which is termed is Tabayun e.g. 1 1 1 1 Wafq e.g. ( & ) ( & ) 6 4 8 3 1 1 In the case of Tamathul e.g. and the base-number will be any of 6 6 the numbers.

22 Islamic Inheritance Laws and Calculations

1 1 In the case of Tadakhul e.g. and the base-number will be the 4 8 larger number. In the case of Tawafuq the Wafq (common factor), will be divided by one of the numbers, then multiplied by the other and its result 1 1 will be the base number e.g. and the Wafq (common factor) is 2 4 6 hence the base number will be 12. 1 1 In the case of Tabayun e.g. and the base-number is achieved by 2 3 multiplying both numbers, in this case 6. NB: If there are more than two numbers (denominators), the number which is a factor is already represented by its multiple, hence it is not required in determining the base-number e.g. (a) 6 (b) 12 (c) 24 1 1 1 1 1 1 1 1 1

3 6 2 4 6 6 8 3 2 Relation: Tadakhul (3&6) Relation: Tawafuq (4&6) Relation: the larger number is used. the factor 2 is divided by 4 Tabayun (8&3), and multiplied by 6 or both numbers are vice versa. multiplied. NB: Another method of determining the base-number is to work out the LCM of all the denominators as illustrated earlier on.

There are six main categories of Primary Heirs

Spouse Parents Grand Children Grand Siblings Parents Children (2) (2) (3) (1) (1) (4)  Husband  Father  Paternal  Daughter  Paternal  Full Sister  Wife  Mother Grand Grand  Paternal Father Daughter Sister  Paternal  Maternal Grand Sister Mother  Maternal  Maternal Brother Grand Mother

23 Islamic Inheritance Laws and Calculations

11 (الزوج) Husband

ퟏ ퟏ Spouse The Husband has two cases and ퟐ ퟒ ퟏ I. In the absence of: Husband ퟐ a) Son b) Daughter Wife c) Grandson (son’s son however low in the hierarchy) d) Granddaughter (son’s daughter however low in the hierarchy) ퟏ II. In the presence of anyone of the above mentioned. ퟒ

Rule#1 The Husband is never deprived nor does he deprive any heir. Mas`alah: There must be a valid marriage according to the Shariah in order for inheritance to take place between spouses. 12 (الزوجة) Wife ퟏ ퟏ The wife has two cases and ퟒ ퟖ ퟏ (I) One Quarter ( ) in the absence of: ퟒ a) Son b) Daughter b) Grandson c) Granddaughter

11 قالٍتعالى:ٍ َو َل ُك ْمٍٍنِ ْص ُفٍٍ َماٍتَ َر َكٍٍأَ ْز َوا ُج ُك ْمٍٍإِنٍ َّل ْمٍٍيَ ُكنٍ َّل ُه َّنٍٍ َو َلدٍ ٍٍ َفإِنٍ َكا َنٍٍ َل ُه َّنٍٍ َو َلدٍ ٍ َف َلكُ ُمٍٍال ُّربُ ُعٍٍ ِم َّماٍتَ َر ْك َنٍٍ ٍۚ ِمنٍبَ ْع ِدٍٍ َو ِصيَّ ةٍٍيُو ِصي َنٍٍبِ َهاٍأَ ْوٍٍدَ ْي نٍ قاعدةٍ:يرثٍالزوجٍالربعٍعندٍوجودٍالفرعٍالوارثٍذكراٍكانٍأوٍأنثى قاعدةٍ:يرثٍالزوجٍالنصفٍعندٍعدمٍوجودٍالفرعٍالوارثٍذكراٍكانٍأوٍأنثى 12

قالٍتعالى: َو َل ُه َّنٍٍال ُّربُ ُعٍٍ ِم َّماٍتَ َر ْكتُ ْمٍٍإِنٍ َّل ْمٍٍيَ ُكنٍ َّل ُك ْمٍٍ َو َلدٍ ٍ َفإِنٍ َكا َنٍٍ َل ُك ْمٍٍ َو َلدٍ ٍ َف َل ُه َّنٍٍالثُّ ُم ُنٍٍ ِم َّماٍتَ َر ْكتُمٍ ِ منٍبَ ْع ِدٍٍ َو ِصيَّ ةٍٍتُو ُصو َنٍٍبِ َهاٍأَ ْوٍٍدَ ْي نٍٍ قاعدةٍ:ٍترثٍالزوجةٍالثمنٍعندٍوجودٍالفرعٍالوارثٍذكراٍكانٍأوٍأنثى قاعدةٍ:ٍترثٍالزوجةٍالربعٍعندٍعدمٍوجودٍالفرعٍالوارثٍذكراٍكانٍأوٍأنثى

24 Islamic Inheritance Laws and Calculations

ퟏ (II) One Eight ( ) in the presence of anyone of the above. ퟖ

NB: If the husband leaves behind more than one wife they will all equally share in the allotted portion. Rule#2 The Wife is never deprived nor does she deprive any heir.

ퟏ Masàlah: The wife will still inherit even though she didn’t bear ퟖ him children, as in the case where the husband has legitimate children from previous marriages. Masàlah: Inheritance between husband and wife occurs with the mere existence of a legal marital contract according to the Shariah (Nikah). This is regardless of whether or not the marriage was consummated, the couple were living together, the wife was chaste etc. Masàlah: If the wife was divorced, she will only be eligible to inherit if at the time of the demise her waiting period had not yet elapsed in the condition that the divorce was revocable(Talaq Raji'). If however the divorce was irrevocable (Talaq Baain) she would not inherit even though her Iddah has not yet elapsed. Masàlah: If a woman was divorced with a Revocable Talaq, thereafter her husband died during her Iddah, then her Iddah would now change to the Iddah of a woman whose husband has died i.e. four lunar months and ten days (i.e.130days). If however the woman was pregnant at the time of demise her Iddah would be completed the moment she delivers the child. Masàlah: Besides her stipulated share, the wife is not entitled to any financial support or maintenance from the estate of the deceased during and after her Iddah period

25 Islamic Inheritance Laws and Calculations

Masàlah: If a marriage took place between a Muslim woman and a non-Muslim man, such a marriage has no basis in the Shariah and is considered illegitimate, thus inheritance between the man and woman would not take place. Masàlah: If a man marries a Christian or Jewish woman, the marriage will be valid. However, if one of the spouses dies, the other would not inherit from the deceased partner because of the difference in religion. Masàlah: The Christian/Jewish wife would not be able to inherit under any circumstances upon the death of the husband, however, it is permissible for him to leave a bequest for her. Masàlah: Similarly, the husband will not be able to claim from the estate of his Christian/Jewish wife unless she made a bequest for him. If a bequest was not made, he would only be able to receive from the estate upon the consent of her heirs (such will be regarded as Hibah). Masàlah: The Shariah allows a man to marry a Christian or Jewish woman, however such marriages should be avoided and discouraged especially in today’s society. Nevertheless if contracted it would be valid. Masàlah: If a Muslim man marries a Christian or Jewish woman who thereafter accepted Islam reverts to her previous religion the marriage will be invalid. Masàlah: If a non-Muslim couple gets married, thereafter both of them accepted Islam, then there is no need to re-new a marriage contract (Nikah). Furthermore, the linage of the children born from the marriage contracted before Islam would be recognized by the Shariah.

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Mas`alah: If one or both of the couple accepted Islam merely for the purpose of contracting the marriage thereafter reverted, then the marriage will not be valid and thus inheritance will not take place. Mas`alah: If the Nikah is regarded as Fasid (defective and irregular) according to the Shariah the linage of the children would still be established (i.e. connected to the father).

NB: Nikah-Fasid is a marriage void of the necessary conditions prescribed by the Shariah. It is not permissible for such a marriage to continue as the relation between the couple is totally impermissible. The marriage must be annulled and couples must be separated. Examples of Nikah-Fasid: (a) Marriage without witnesses (b) Marriage of the sister of one’s wife after her demise or divorce, before the completion of her Iddah (waiting period) (c) Marriage of a fifth woman while the fourth wife is still in her Iddah. Mas`alah: In a Nikah-Fasid there will be no inheritance between the couple as they are not regarded as Husband and Wife. Mas`alah: If a non-Muslim husband embraces Islam while his wife remains a Kafir, the marriage will be terminated unless his wife is a Christian or Jew. The termination of the marriage will occur if the woman refuses to accept Islam. If however, she accepts Islam before the Iddah period (three menstrual cycles) elapsed (from the time of the Islam of her husband) then the marriage will continue (i.e. it will remain valid).13

(143 /3) المحيط البرهاني في الفقه النعماني 13

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Mas`alah: If a non-Muslim wife embraces Islam while her husband remains a disbeliever, the marriage will be terminated regardless of his religion. The termination of the marriage will take place after the Iddah period has elapsed. If however, the husband accepts Islam before the time elapses the marriage would remain valid. The Iddah will commence the moment she embraces Islam and during this time the wife must refrain from all marital relations with her husband for the entire Iddah period.

14 (االب) Father Parents The Father has three cases: 1 (I) Primary shares { } 6 Father (II) Residuary Share (Asabah) (III) Primary share and Residuary share Mother 1 I. Primary Share { } in the presence of: 6 (a) Son (b) Grandson (son’s son, however low in the hierarchy) II. Residuary Share (entirely) in the absence of: (a) Son (b) Grandson (c) Daughter (d) Granddaughter

وإن كان الذي أسلم هو الزوج فإن كانت المرأة كتابية أق ّرا على النكاح، وإن كانت مجوسية أو وثنية عرض عليها اإلسالم، فإن أسلمت وإال ف ّرق بينهما .وتكون هذه فرقة بغير طالق بال خالف وال مهر لها إن كان اإلباء قبل الدخول بها، وإن كان بعد الدخول بها فليس لها نفقة العدة وإن أسلم أحد الزوجين في دار الحرب، فإن الفرقة توقف على مضي ثالث ِح ي ٍض، فإذا مضت وقعت الفرقة، وهذا ألنه تعذر اعتبار التفريق من جهة القاضي النتزاع واليته من دار الحرب، والنقضاء ثالث حيض أثّر في وقوع الفرقة بالطالق فأقمنا مضي ثالث حيض مقام التفريق عند تعذر اعتبار .التفريق قال تعالى: و ِأل ب و ي ِه ِل ُك ِّ ل وا ِح ٍد ِّم ن ُه ما ال ُّسدُ ُس ِم َّما ت ر ك إِن كا ن له ُ و لد فإِن َّل م ي ُكن َّله ُ و لد و و ِرث ه ُ أ ب واه ُ ف ِِلُ ِّم ِه الثُّلُ ُث فإِن كا ن له ُ إِ خ وة ف ِِلُ ِّم ِه ال ُّسدُ ُس ِمن 14 ب ع ِد و ِص َّي ٍة يُو ِصي بِ ها أ و د ي ٍن قاعدةٍ:ٍيرثٍاألبٍالسدسٍبالفرضٍعندٍوجودٍالفرعٍالوارثٍمنٍالذكورٍكاالبنٍأوٍابنٍاالبنٍوإنٍنزل قاعدةٍ:ٍيرثٍاألبٍبالتعصيبٍالمحضٍعندٍعدمٍوجودٍالفرعٍالوارث قاعدةٍ:ٍيرثٍاألبٍبالفرضٍوالتعصيبٍمعاًٍمعٍوجودٍالفرعٍالوارثٍمنٍاإلناثٍكالبنتٍأوٍبنتٍاالبن

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1 III. Primary shares { } as well as Residuary Share in the Presence 6 of: (i) Daughter or (ii) Granddaughter and the Absence of: (i) Son and (ii) Grandson. NB: An Asabah heir is one who receives whatever remains from the estate after primary heirs receive their allotted shares. Rule#3 The Father is never deprived however, he eliminates the following; (a) Grandfather (b) Paternal grandmother (c) Siblings Masàlah: A Man cannot inherit from his illegitimate child even though he may be his biological father and vice versa. Masàlah: If an unmarried woman commits fornication and consequently gives birth. The linage of that child would not be connected to the father as stated before. Masàlah: If an unmarried woman becomes pregnant for the person she fornicated with, thereafter marries him and gives birth to the child after six months or more (from the time of marriage) the child will be considered legitimate. Paternity will be established and the child will be attributed to the husband i.e. the man (fornicator) would be not only the biological father but his real father according to Shariah. Masàlah: If after marrying the fornicator, she gives birth before six months of the marriage from the time of marriage then the paternity of the child will not be established. Similarly, if she marries the fornicator after the birth of the child. Masàlah: If the unmarried woman fornicated and became pregnant thereafter marries other than the fornicator the paternity of the child will only be connected to the husband if the child is born after

29 Islamic Inheritance Laws and Calculations six months from the time of marriage. NB: This is the ruling even though the marriage may not have been consummated.

)االم( Mother The Mother has three cases 15 ퟏ 1 1 (1) (2) (3) of the estate after deducting ퟔ 3 3 the spouse’s share.

ퟏ I. in the presence of any of the following; ퟔ (a) Children (son or daughter) (b) Paternal Grand Children (c) Two or more siblings (from both parents or from either one)

ퟏ II. , in the absence of all the above. ퟑ ퟏ III. of whatever remains after deducting the spouse’s share (not ퟑ ퟏ of the entire estate) this occurs in a case where only a spouse inherits ퟑ with both parents, in the condition that the mother is not partially deprived. It is also possible in this case that the mother, instead of receiving her primary share, be treated as an Asabah and receive the residue in a 2:1 ratio. The father will get twice the share of the mother. The husband or wife will get his/her prescribed share as normal.

Example 1 Example 2 Example 3 12 6 4 Wife Mother Father Husband Mother Father Wife Mother Father 1 1 1 1 1 عصـــــــــــــــــــبة ع (of 3) ع (of 3) 4 3 2 3 4 3 3 6 3 1 2 1 1 2

قاعدةٍ:ٍترثٍاألمٍالسدسٍعندٍوجودٍالفرعٍالوارث،ٍأوٍاذاٍكانٍللميتٍاثنانٍأوٍأكثرٍمنٍاإلخوةٍأوٍاألخوات 15 قاعدةٍ:ٍترثٍاألمٍالثلثٍعندٍعدمٍوجودٍالفرعٍالوارثٍوٍاذاٍلمٍيكنٍللميتٍاثنانٍأوٍأكثرٍمنٍاإلخوةٍأوٍاألخوات قاعدةٍ:ٍترثٍاألمٍثلثٍالباقيٍبعدٍفرضٍأحدٍالزوجينٍالموجود

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NB: In examples 1 and 2, the base numbers (12 and 6) were used for easiness. Classically, the base numbers would be the denominators of the spouses’ share. NB: This case would not exist in the presence of siblings even though the siblings would be deprived e.g. (wife, mother, father, brother and sister) 12 Wife Mother Father Brother Sister 1 1 × × ع 4 6 3 2 7 Rule#4 The Mother is never eliminated however, she eliminates both the Maternal and Paternal Grandmothers. Children born illegitimately or Disavowed of Paternity Masàlah: A woman will inherit from her children and vice versa, whether the children were born legitimately or not. Masàlah: Children born illegitimately to a woman (who was not married) will have no real father and thus inheritance will only take place between child and the mother (and the mother’s relations). NB: The same ruling that applies to an unmarried woman will apply to a woman married to a non-Muslim man. Masàlah: Children born illegitimately to a woman (who was married), will inherit from the husband of that woman also and vice versa as he is considered the legitimate father. Masàlah: If however, the husband denies the paternity of his wife’s pregnancy or negated the new-born then there would be no lineage between the husband and the child provided that Li’aan took place. This is irrespective of whether the wife committed the illicit act or not.

31 Islamic Inheritance Laws and Calculations

Masàlah: The process of Li’aan can only be executed in the presence of a Muslim Judge (in an Islamic Court) or by an Islamic Council (of competent Scholars). After the process of Li’aan the Muslim Judge/Islamic Council will dissolve the marriage and the couple will be separated. This separation will be permanent and hence the couple will not be allowed to ever re-marry. Masàlah: If however, the husband negates the paternity of the child except that the process of Li’aan did not take place then he will still be regarded as the father or the child. Masàlah: In a case where a child was born via surrogacy then the surrogate mother would be considered the real mother and her husband would be considered the father. Masàlah: If a surrogate mother uses the sperms of a man other than her husband, the paternity of the child will still be attributed to her husband. If however, he negates the paternity of the pregnancy the child will only be attributed the surrogated mother and her relations. Masàlah: It is totally impermissible for a woman to use sperms other than her husband’s. It is also impermissible for a man to use his sperms to fertilize eggs other than his wife. Hence the impermissibility of a woman carrying the egg of another woman fertilized by the sperms of her husband. Similarly, it is impermissible for an unmarried woman to carry a fertilized egg via surrogacy. Masàlah: Similarly, if an unmarried woman commits a Haram act by giving birth via surrogacy, the child will be attributed to her and not the donor of the sperms. Masàlah: In all the cases where the lineage of the child is connected only to the mother, inheritance will take place between the child and

32 Islamic Inheritance Laws and Calculations the mother as well as her relations. Furthermore, the child will be allowed primary shares (i.e. shares allotted maternal siblings) and not residuary (Asabah).

Apostasy in Islam Apostasy in Islam is a term referred to a Muslim who clearly denounces Islam, either by his words, actions or beliefs. Apostasy destroys all the good deeds of a person performed prior to apostasy (i.e. as a Muslim). An apostate is a Kafir, in fact from the worst types of Kuffaar. Kufr is the gravest and worst of sins, it is the greatest atrocity a human-being can ever commit. Disbelief is the most it is an act which is,ﷻ detested action in the sight of Allah so much so that, if a person dies ﷻunpardonable in the court of Allah in such a state he is destined to the fire of Jahanam for eternity. If such a person dies, it will not be permissible to perform Janazah Salah upon him nor will it be permissible for him/her to be buried in a Muslim cemetery. If however, such a person repents and re- the Most Merciful will forgive all his sins ﷻ accepts Islam, Allah except that the rewards for his deeds performed prior to apostasy will not be returned. .protect our Imaan ﷻ May Allah Mas`alah: If any of the spouses commits apostasy the Nikah will be immediately terminated. Mas`alah: If a man committed apostasy, and died in that state then, his/her heirs will only inherit from that portion of wealth owned

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and possessed by him while being a Muslim and the latter used for the general welfare of the Muslims. Mas`alah: If a woman committed apostasy then the ruling would be different, in that her entire estate i.e. before apostasy as well as after would be inherited by her heirs. NB-An apostate, whether man or woman, will not inherit from his Muslim family members. Mas`alah: If one of the parents commits apostasy the children (non- baligh) would follow that parent which is upon Islam.

(الجد) Paternal Grand Father:16 Grand- Father’s Father (however high in the hierarchy) with parents the condition that there does not exist a female

Paternal intermediary between him and the deceased. If such Grand- an intermediary exists, the grandfather is referred to Father as Jadd Fasid (irregular grandfather) and will belong to the third category (Dhawul Arhaam). Maternal Grand- The Grandfather can only inherit in the absence of the Mother Father. The inheritance of the Grandfather is identical to that of the Father. There are however two Paternal situations wherein if the Grandfather were to be in Grand- Mother place of the Father the inheritance would differ. There two situations are as follows:17

قاعدةٍ:ٍالجدٍالصحيحٍالوارثٍهوٍمنٍليسٍبينهٍوبينٍالميتٍأنثىٍكأبٍاألب 16 قاعدةٍ:ٍالجدٍالفاسدٍهوٍالذيٍالٍينسبٍإلىٍالميتٍاالٍبدخولٍاألنثىٍكأبٍاألم قاعدةٍ:ٍمنٍأدلىٍالىٍالميتٍبواسطةٍالٍيرثٍمعٍوجودٍتلكٍالواسطة

17 There are actually four cases in which the inheritance of the Grand Father differs from the Father, the other two cases were not mentioned because of its irrelevancy. One pertains to slavery and the other is an un-preferred view of the Madhab.

34 Islamic Inheritance Laws and Calculations a. Where the grandfather inherits with the mother in the presence of ퟏ one of the spouses; in this situation the mother would inherit of ퟑ the entire estate. Had the father been present, the mother would ퟏ have received of whatever remains after the spouse has received ퟑ his/her allotted share, as mentioned above. b. The paternal grandmother inherits in the presence of the grandfather. Had the father been present, the paternal grandmother would be totally deprived.

Rule#5 The Grandfather eliminates all the Siblings (Full and Half) however, he is eliminated by the Father.

Paternal Grandmother & Maternal Grandmother18, (however high in the hierarchy) with the condition that there does not exist a Jadd Fasid. (Irregular Grand-Father) between her and the deceased. The grandmothers have one case ퟏ I. in the presence of one grandmother i.e. she will receive the ퟔ entire share, however in the presence of more than one; they will ퟏ jointly share . ퟔ Rule #1 All will be deprived of inheritance in the presence of the mother, Similarly Great grandmother will be excluded in the presence of grandmother. Rule #2 The Paternal grandmother will be excluded in the presence of the father.

القاعدة:ٍالجدةٍالصحيحةٍ:ٍهيٍالتيٍالٍيدخ ٍفيٍنسبتهاٍإلىٍالميتٍجدٍفاسد،ٍفالجدةٍالصحيحةٍهيٍأمٍأحدٍاألبوين،ٍكأمٍاألم،ٍوأمٍاألب،ٍوأمٍأبيٍاألب،ٍوأمٍأمٍاألم،ٍوأمٍأمٍاألبٍ ٍك ٍجدةٍأدلتٍبوارثٍفهيٍوارثة 18 القاعدة:ٍالجدةٍالفاسدةٍ:ٍوهيٍالتيٍيدخ ٍفيٍنسبتهاٍإلىٍالميتٍجدٍفاسدٍكأمٍأبيٍاألمٍوأمٍأبيٍأمٍاألب،ٍوهذهٍليستٍمنٍذواتٍالفروض،ٍوإنماٍهيٍمنٍذواتٍاألرحام،ٍوالجدةٍالرحميةٍالٍفرضٍله

35 Islamic Inheritance Laws and Calculations

Rule #3 The paternal grandmother will not be excluded in the presence of the Grand Father. (This is one of the four cases in which the inheritance of the grandfather differs from that of the father) Rule #4 Those who are closer to the deceased will exclude those who are further away, hence a grandmother will exclude a great grandmother.

Rule#6 The Grandmothers are eliminated by the Mother and The Paternal Grandmother specifically, by the Father.

The Daughter has three cases

Children ퟏ (1) In the presence one daughter and no son ퟐ ퟐ (2) In the presence of two or more daughters ퟑ Daughter and no son (3) A’sabah in the presence of one or more sons. They will inherit whatever remains at the ratio of 2:1 (son: daughter)

Rule#7 The Daughter is never eliminated however, she eliminates the Maternal Siblings

Mas`alah: A non-Muslim couple got married and had children, such children a considered legitimate, after embracing Islam one or both of them died, then the children which are not baligh will inherit. Mas`alah: If one of the couple accepts Islam, then inheritance will only take place between him/her and the non baligh children.

36 Islamic Inheritance Laws and Calculations

Masàlah: If the non-baligh children out rightly deny being a Muslim then there will be no inheritance between them. Masàlah: If however the children are baligh, their Islam must be verified and confirmed in order for inheritance between them and their parent/parents to be valid. Masàlah: Adopted and fostered children are not eligible heirs. Masàlah: An unborn child is eligible to inherit once born alive as long as it can be confirmed that the pregnancy existed at the time of demise. NB: The son is not from amongst the primary heirs rather he is a residuary (secondary) heir. However he always receives a share from the estate, which means that he is like a primary heir without a fixed share. After shares have been distributed to Primary Heirs the son receives all the residue. No one receives residuary inheritance in the presence of the son. NB: The son is the only guaranteed residuary heir. Rule#8 The son is never eliminated however, he eliminates the following; (a) Grandchildren (b) Siblings & their offsprings (c) Uncles & their offsprings. Paternal Grand Daughter from the son of Grand the deceased (however low in the hierarchy). Children NB: The Granddaughter from the daughter of the deceased belongs to the third category. Paternal (Dhawul Arhaam) The granddaughter will Granddaughter only inherit in the absence of the son.

The Granddaughter has five cases: ퟏ I. In the presence of one granddaughter. ퟐ ퟐ II. In the presence of two or more granddaughters ퟑ

37 Islamic Inheritance Laws and Calculations

NB: The two above cases will only exist in the absence of the Daughter.

ퟏ III. In the presence of one Daughter the granddaughter/s will ퟔ ퟐ receive one-sixth (to complete the total amount designated to ퟑ daughters.) IV. If two daughters are present then the granddaughter will be deprived of any inheritance. V. If however, in the presence of two or more Daughters there is a Paternal Grandson (however low in the hierarchy). Then the Granddaughter will become Asabah. They (grandson and granddaughter) will inherit what remains on the ratio of 2:1 (grandson: granddaughter). NB: The Grandson does not make the Daughter an Asabah. NB: Only the Son affects the share of the Daughter/s (i.e. converts her from a primary heir to a secondary heir). Rule#9 The Granddaughter eliminates all the Maternal Siblings. Blessed Brother: He is that brother, if not for him his sister would not inherit e.g. a person dies leaving behind two daughters, a granddaughter and grandson. In this case the grandson is the blessed brother. In his absence his sister would not have inherited. Wretched Brother: He is that brother, due to his presence his sister will not inherit e.g. a person dies leaving behind a husband, mother, father, daughter, granddaughter and grandson. In this case the grandson is the wretched brother as in his absence his sister would have inherited.19

.االخ المبارك : و الذي لواله لسقطت أخته فلم ترث شيئا، فإذا حازت البنات الثلثين، سقط بهن بنات االبن 19 األخ المشؤوم: توفيت امرأة عن زوج وأم وأب وبنت ابن وبنت وابن ابن: ألنه لم يبق شيء من التركة بعد اخذ اصحاب الفروض نصيبهم فال ترث .معه شيئا، فهو قريب مشؤوم عليها، ولو لم يوجد لورثت السدس تكملة الثلثين مع البنت الصلبية

38 Islamic Inheritance Laws and Calculations

Rule#10 The Grandson is eliminated in the presence of the son and may inherit in his absence. The Siblings category is of three types: Siblings (i) Banul A’yan: siblings having the same Father and Mother i.e. full siblings. Full (ii) Banul 'Allaat: siblings sharing the same Sisiters Father. They are known as agnate siblings or paternal siblings. (iii) Banul Akhyaf: siblings sharing the same Paternal Sisters Mother. They are known as uterine siblings or maternal half siblings.

Maternal NB: Full and Paternal Brothers are secondary Brothers heirs (Asabah) and are not primary heirs. Full Sisters; (from both the mother and father of Maternal the deceased) Sisters They will only inherit in the absence of: (1) Son & Grandson (son’s son however low in the hierarchy). (2) Father & Grandfather (father’s father-however high in the hierarchy. In the absence of the above the Full-Sister can either receive Primary shares or Residuary shares. Primary shares can only be received in the absence of the Daughter and there are two cases:

ퟏ I. in the presence on one sister ퟐ ퟐ II. in the presence of two or more sisters. ퟑ

39 Islamic Inheritance Laws and Calculations

Residuary shares can be received in the presence of a Full Brother or in the presence of a Daughter or Granddaughter (1) In the presence of Full Brother/s the Full-Sister will be a residuary heir and will inherit whatever remains, in a ratio of 2:1 (Brothers: Sisters) NB- If the Paternal Half Brother is in place of The Full Brother then he will not make them ( full sisters) Asabah, rather in his presence the full sisters will receive primary shares. (2) In the presence of a daughter or granddaughter, the full sister will be a residuary heir and will receive entirely whatever remains of the estate. NB: If the full sister inherits simultaneously with a full-brother and a daughter/grand-daughter then the full-brother will make her a residuary heir and not the daughter or granddaughter. Thus she would inherit in the ratio of 2:1 (brother: sister) NB: When a Male Heir makes a Female Heir an Asabah, both male and female will inherit in the ratio of 2:1 (male: female). NB: When a Female (Daughter/Granddaughter) makes a Female (Full-Sister/Paternal- Sister) an Asabah, then former will receive primary shares while the latter will receive residuary shares entirely. Rule#11 The Full Sisters are eliminated by the following: (a)Son (b) Grandson (c) Father (d) Grandfather

Sisters of the deceased from the ;(االخت ألب) Paternal Half Sisters father. The Paternal Sister has five cases:

ퟏ I. In the presence of one paternal sister ퟐ

40 Islamic Inheritance Laws and Calculations

ퟐ II. In the presence of two or more paternal sisters ퟑ The two above cases will only exist in the absence of the full-sister (as well as daughter/granddaughter)

ퟏ III. In the presence of one full-sister the paternal half-sisters will ퟔ ퟐ receive one-sixth (to complete , the total amount designated to ퟑ sisters (in the absence of daughter/granddaughter) IV. In the presence of two or more full sisters they will not inherit except if there exist a paternal half bother, as he will make her Asabah. They will inherit whatever remains at a ratio of 2:1 (Paternal brother: Paternal-sister). V. In the presence of a daughter or granddaughter, the paternal half- sister will receive residual shares entirely as they (daughter/granddaughters) will make her Asabah. NB: If a full sister becomes an Asabah with the daughter or granddaughter then the Paternal Siblings (both brother and sister) will be eliminated.20 2 Paternal Brother ,Full-Sister, Daughter ½ ع × 1 1 NB: The Paternal brother is deprived because the full-sister is made Asabah by the Daughter.

Rule#12 The Paternal Half-Sisters will be eliminated in the presence of the following: )1( Son or the son’s son however low in the hierarchy. )2( Father or father’s father-however high in the hierarchy (3) Full Brother

يسقط بنو العالت أيضا باالخ إلب و أم و باألخت إلب و أم إذا صار ْت عصب ة )السراجي ص22(20

41 Islamic Inheritance Laws and Calculations

(4) Two full sisters in the absence of a paternal half-brother

(أوالد االم) Maternal Siblings Maternal Brothers and Sisters are siblings of the deceased sharing the same mother but different fathers. The children of the mother of the deceased will inherit in the same manner without any distinction between male and female.

The Maternal Siblings has two cases: I. 1/6, in the presence of one (brother or sister) II. 1/3, in the presence of two and more i.e. they will equally share in one third. Rule#13 Maternal Siblings will be eliminated in the presence of the following: (a) Son, grandson (b) Father, Grandfather (c) Daughter, paternal granddaughter. NB: The full brother does not eliminate the maternal siblings. They do however, eliminate the paternal half-siblings [as mentioned above.]

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Summary of the Primary Heirs and their Shares

HEIRS CASES SHARES CONDITIONS I ퟏ Absence of Children and Grand ⁄ퟐ Husband Children II ퟏ Presence of Children and Grand ⁄ퟒ Children I ퟏ Absence of Children and Grand ⁄ퟒ Wife Children II ퟏ Presence of Children and Grand ⁄ퟖ Children I 1 Presence of Son /Grandson ⁄6 II Asabah (entirely) Absence of Son/Grandson, Father Daughter/Grand Daughter III 1 Presence of Daughter and Absence ⁄6 + Asabah of Son I 1 Absence of Children, Grand Children ⁄3 and two or more siblings Mother II 1 Presence of Children, Grand ⁄6 Children and two or more siblings III 1 Presence of the spouse and father ⁄3 after allotting spouse’s share and the Absence of Children, Grand Children and two or more siblings. I 1 Absence of Father and Presence of ⁄6 Son Grand II Asabah Absence of Father and Absence of Father Son III 1 Absence of Father and Presence of ⁄6 + Asabah Daughter and Absence of Son Maternal I 1⁄ Absence of Mother, Grand 6 Mothers Paternal I 1 Absence of Mother and Father ⁄6 Grand Nb: In presence of both Grand Mothers Mothers they will equally share 1/6 I ½ One in Absence of Son Daughters II 2 Two or more in the absence of son. ⁄3 III Asabah Presence of One or more Son

43 Islamic Inheritance Laws and Calculations

I ½ One, in the Absence of Daughter and Son Paternal- II 2 Two, in the Absence of Daughter and ⁄3 Grand Son Daughters III 1 In the presence of One daughter and ⁄6 absence of Son IV Asabah In the presence of Grand Son I ½ One, in the Absence of Son/Grand Son, Father/Grand Father, Daughter/ Grand Daughter. II 2 Two or more in the absence of all ⁄3 Full- above. Sisters III Asabah In the Absence of Son/Grand Son, Father/Grand Father and the presence of a full-brother. IV Asabah In the Absence of Son/Grand Son, Father/Grand Father and the Presence of Daughter (s)/ Grand Daughter(s) I ½ One, in the Absence of Son/Grand Son, Father/Grand Father, Sister, Brother/Daughter/ Grand Daughter. II 2 Two, in the Absence of Son/Grand ⁄3 Son, Father/Grand Father, Sister, Brother/Daughter/ Grand Daughter. III 1 Presence of One Sister, In the Absence ⁄6 of Son/Grand Son, Father/Grand Paternal- Father, Brother/Daughter/ Grand Sisters Daughter and the IV Asabah Presence of Paternal Brother. In the Absence of Son/Grand Son, Father/Grand Father, Brother and the V Asabah In the Absence of Son/Grand Son, Father/Grand Father, Brother and the Presence of Daughter(s)/ Grand Daughter(s) Maternal- i 1 One, in the Absence of Son/Grand Son, ⁄6 Sibling Father/Grand Father, /Daughter/ (Males & Grand Daughter. Females) ii 1 Two or more, in the Absence of ⁄3 Son/Grand Son, Father/Grand Father, /Daughter/ Grand Daughter.

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Chapter Three Secondary /Residuary Shares (العصبة) Asabah The Asabah Heirs are those heirs whose shares are not fixed, rather they inherit whatever remains from the estate after Primary heirs have received their fixed shares. There are three categories of Asabah: (العصبة بنفسه) Asabah bi nafsi .1 (العصبة بغيره) Aasabah bi ghayri .2 (العصبة مع غيره) Aasabah ma’ ghayri .3 NB-There may be multiple Primary Heirs of different categories inheriting simultaneously but they can only be one Asabah category inheriting. (1) Asabah bi Nafsi: This category consists of the male agnate relatives of the deceased. They are connected to the deceased without the mediation of a female. Each of them is an Asabah heir by his own right (without any dependency). The Asabah bi Nafsi are as follows: I. The son and his male offsprings, however low in the hierarchy II. The Father and Grand Father (father’s father however high in the hierarchy and their male offsprings (i.e. brothers and uncles, however low in the hierarchy). The nearest to the deceased inherits thus eliminating the others. They can be graded into four groups and their priority sequence is as follows: 1. Sons of the deceased and their sons, however low in the hierarchy

45 Islamic Inheritance Laws and Calculations

2. Father of the deceased, father’s father, however high in the hierarchy 3. Brothers of the deceased and their male offsprings (paternal nephews however low in the hierarchy) 4. Paternal Uncles of the deceased and their male offsprings (paternal male cousins) The highest priority is given to those in the first group in sequence mentioned (i.e. Son then Grand Son), if they cease to exist in totality then the second group in sequence will inherit then the third group then the forth group in this manner.21

Son Grand Son Father Grand Father Brother Nephew Uncle Cousin

NB-The Father and Grand Father are primary heirs and may also receive residuary shares (i.e. in the absence of the son and grandson).

قال النبي صلى هللا عليه و سلم ألحقوا الفرائض بأهلها ، فما أبقت الفرائض ، فِلولى رجل ذكر 21

46 Islamic Inheritance Laws and Calculations

(2) Aasabah bi ghayri: Residuary heirs by rights of others, they are all originally primary heirs who have been transformed into residuary heirs because of the co-existence of a certain male agnate. All the members in this group are females; they are as follows, Daughter, Paternal- Granddaughter, full and paternal sisters. (a) Daughter- Son converts her into residuary (b) Granddaughter - Grandson (son’s son) converts her into residuary (c) Full sister- Full brother converts her into residuary (d) Paternal sister- Paternal brother converts her into residuary NB-The male agnate must be in the same level and degree of the female in order to convert her to residuary, therefore the grandson (son’s son) will not convert the daughter nor will the paternal brother convert the full sister. Similarly a full brother would not convert a paternal half-sister.22 This Asabah category (Aasabah bi ghayri) will inherit whatever remains from the estate in a ratio of 2:1 (male: female). ”for the male twice as much as a female“ للذكر مثل حظ األنثيين NB: The Grandson cannot convert the Daughter. NB- The following female primary heirs will not be converted into residuary heirs: (1)Wife, (2) Mother, (3) Grand Mother, (4) Maternal Sister

22 Except in the case of the great grandson, as he can make the granddaughter an Asabah.

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(3) Aasabah ma’ ghayri- residuary heirs with those who are primary heirs. This category is exclusive to full and paternal sisters. Sisters (full and paternal) are originally primary heirs. They however, they will be transformed into residuary heirs due to the presence of a daughter or granddaughter. The Sisters will inherit entirely whatever remains from the estate. The inheritance of the Daughter/Granddaughter will not be affected i.e. they will remain Primary Heirs.23 In this type of Asabah (ma’ ghairi), there is no guarantee that the sisters (full and paternal) will inherit from the estate of the deceased. If all the shares are not exhausted by the primary heirs only then would the sisters inherit. In a situation where a daughter or granddaughter inherits with both a full sister and a paternal half-sister only the full sister will be transformed into a residuary heir. As for the paternal half-sister, she will be eliminated. NB: Maternal sisters will not be transformed into residuary heirs.

6742 صحيح البخاري 23 حدثنى عمرو بن عباس حدثنا عبد الرحمن حدثنا سفيان عن أبى قيس عن هزيل قال قال عبد هللا ألقضين فيها بقضاء النبى - صلى هللا عليه وسلم لالبنة النصف، والبنة االبن السدس، وما بقى فلِلخت

48 Islamic Inheritance Laws and Calculations

PRACTICE EXERCISE 1.

WIFE̅̅̅̅̅̅̅̅−̅̅̅ ̅ MOTHER̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅SON̅̅̅̅̅ ̅–̅̅ DAUGHTER̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅BROTHER̅̅̅̅̅̅̅̅̅̅̅̅

WIFE̅̅̅̅̅̅̅̅−̅̅̅ ̅DAUGHTER̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅ ̅MOTHER̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ SISTER̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅P̅̅.̅GRAND̅̅̅̅̅̅̅̅̅ ̅MOTHER̅̅̅̅̅̅̅̅̅̅̅

WIFE̅̅̅̅̅̅̅̅−̅̅̅ ̅GRAND̅̅̅̅̅̅̅̅̅̅ MOTHER̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅DAUGHTER̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅ ̅−̅̅̅SISTER̅̅̅̅̅̅̅̅̅

HUSBAND̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅MOTHER̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅SON̅̅̅̅̅̅−̅̅̅P̅̅.̅GRANDFATHER̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅

SISTERS̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅M̅̅.̅̅SISTERS̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅M̅̅.̅BROTHERS̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅GRAND̅̅̅̅̅̅̅̅̅ ̅MOTHER̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅P̅.̅̅BROTHER̅̅̅̅̅̅̅̅̅̅̅̅

HUSBAND̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅GRANDMOTHER̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅BROTHER̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ P̅̅.̅BROTHER̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅P̅.̅SISTER̅̅̅̅̅̅̅̅̅

P̅̅.̅GRANDMOTHER̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅M̅̅̅.̅GRANDMOTHER̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅WIFE̅̅̅̅̅̅̅̅−̅̅̅ ̅DAUGHER̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅SISTER̅̅̅̅̅̅̅̅̅

WIVES̅̅̅̅̅̅̅̅̅̅−̅̅̅DAUGHTERS̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅MOTHER̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅GRAND̅̅̅̅̅̅̅̅̅ ̅DAUGHTER̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅P̅̅.̅NEPHEW̅̅̅̅̅̅̅̅̅̅̅

HUSBAND̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅DAUGHTERS̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅M̅̅̅.̅SISTER̅̅̅̅̅̅̅̅̅̅−̅̅̅M̅̅.̅BROTHER̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅MOTHER̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅P̅.̅SISTER̅̅̅̅̅̅̅̅̅

FATHER̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅DAUGHTER̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅MOTHER̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅P̅̅.̅GRANDMOTHER̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅SON̅̅̅̅̅

WIFE̅̅̅̅̅̅̅̅−̅̅̅FATHER̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅MOTHER̅̅̅̅̅̅̅̅̅̅̅

49 Islamic Inheritance Laws and Calculations

WIFE̅̅̅̅̅̅̅̅−̅̅̅ ̅FATHER̅̅̅̅̅̅̅̅̅̅̅̅−̅̅ ̅MOTHER̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅SISTER̅̅̅̅̅̅̅̅̅̅−̅̅̅BROTHER̅̅̅̅̅̅̅̅̅̅̅̅

DAUGHTERS̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅GRANDDAUGHTERS̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅GRAND̅̅̅̅̅̅̅̅̅ ̅SON̅̅̅̅̅̅−̅̅̅MOTHER̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅SISTER̅̅̅̅̅̅̅̅̅

DAUGHTER̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅GRANDDAUGHTERS̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅SISTERS̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅MOTHER̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅HUSBAND̅̅̅̅̅̅̅̅̅̅̅̅̅

15 DAUGHTERS̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅GRANDDAUGHTERS̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅MOTHER̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅SISTER̅̅̅̅̅̅̅̅̅̅−̅̅̅WIFE̅̅̅̅̅̅

SISTER̅̅̅̅̅̅̅̅̅̅−̅̅̅P̅̅.̅SISTER̅̅̅̅̅̅̅̅̅̅−̅̅̅M̅̅̅.̅SISTER̅̅̅̅̅̅̅̅̅̅−̅̅̅M̅̅.̅BROTHER̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅P̅̅.̅UNCLE̅̅̅̅̅̅̅̅

HUSBAND̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅BROTHER̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅M̅̅.̅̅BROTHER̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅P̅̅.̅SISTER̅̅̅̅̅̅̅̅̅̅−̅̅̅GRANDDAUGHTER̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅

WIFE̅̅̅̅̅̅̅̅−̅̅̅BROTHER̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅M̅̅.̅ ̅ SISTERS̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅M̅̅.̅GREAT̅̅̅̅̅̅̅̅̅̅ GRANDMOTHER̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅

GRAND̅̅̅̅̅̅̅̅̅̅ ̅SON̅̅̅̅̅̅−̅̅̅DAUGHTER̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅M̅̅.̅ ̅SISTERS̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅GRANDDAUGHTERS̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅

GRAND̅̅̅̅̅̅̅̅̅̅ ̅FATHER̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅DAUGHTER̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅MOTHER̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅P̅̅.̅GRANDMOTHER̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅SON̅̅̅̅̅

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Chapter Four

(الحجب) Deprivation/Hujub The concept of Hujub refers to cases where heirs are deprived of inheritance due to the presence of certain heirs and not due of any defects or impediments in themselves. There are two types of Hujub (Deprivation)  Al-Hujub an-Naqis (Partial Deprivation)  Al-Hujub al-Kaamil (Total Deprivation) (Al-Hujub an-Naqis (Partial Deprivation الحجب الناقص (1) This is the case where heirs are partially deprived of inheritance due to the existence of certain heirs. There are five primary heirs who may be partially deprived of inheritance: (a) Mother- from a third to a sixth in the presence of children or two or more siblings (b) Husband-from a half to a quarter in the presence of children or grandchildren. (c) Wife-from a quarter to an eighth in the presence of children or grandchildren. (d) Paternal Sister/s- from a half or two thirds to a sixth in the presence of a full sister. (e) Grand Daughter/s- from a half or two thirds to a sixth in the presence of a Daughter.

51 Islamic Inheritance Laws and Calculations

(Al-Hujub al-Kaamil (Total Deprivation الحجب الكامل (2) This is a case where heirs are totally deprived of inheritance due to the existence of other heirs. There are seven primary heirs who may be totally deprived from inheritance due to the presence of certain relatives. (1) Grandfather in the presence on the Father (2) Grandmothers (both maternal and paternal) in the presence of the mother. (3)Paternal Grandmother in the presence of the Father. (4) Full sisters in the presence of the Son/Grandson/ Father/Grandfather. (5) Paternal Sister in the presence of:

 Son/ Grandson

Father/Grandfather

 Full Brother

 A Full sister (when she becomes Asabah with a daughter or granddaughter)

 Full sisters (in the absence of a paternal brother) (6) Maternal Siblings in the presence of:

 Son/ Grandson

 Daughter/ Granddaughter

 Father/ Grandfather

52 Islamic Inheritance Laws and Calculations

(7) Granddaughters (in the absence of a grandson) in the presence of Daughters (8) Grand Son/s in the presence of a Son .Mahjub محجوب NB: An heir who is totally deprived is termed There are five primary heirs that will inherit in all cases and will never be totally deprived of inheritance: (1) Father (2) Mother (3) Daughter (4) Husband (5) Wife

Rule#14: Those heirs which are connected to the deceased through an intermediary will be totally deprived of inheritance in the presence of that intermediary (except the siblings in the presence of the Mother) Rule#15: In the presence of a higher priority Asabah category, the lower priority categories will be totally deprived. Rule#16: If there are multiply members present in the qualified category all of whom are equally close to the deceased then those blood ties which are stronger will inherit [e.g. in the case of a full brother with a paternal brother].

Chapter Five Hirmaan)/ Denial of Inheritance) الحرمان That family member who is denied inheritance is termed Mahrum This concept refers to those family relatives that have been.(محروم) totally denied of inheritance because of defects and impediments on themselves viz. difference of religion, bondage murder/manslaughter.

53 Islamic Inheritance Laws and Calculations

Differences between a Mahjub Kamil and a Mahrum )1( A Mahjub is a qualified heir who was not fortunate to inherit, whereas Mahrum is a disqualified heir who cannot legally inherit. (2) A Mahjub does not inherit because of the presence of a particular heir who was more deserving of inheritance than him/her, whereas a Mahrum is denied of inheritance because defects on his behalf, his existence equals his non-existence. (3) A Mahjub can deprive other heirs partially and fully, whereas a Mahrum does not affect the inheritance of anyone neither through Partial Deprivation nor Total Deprivation.

Chapter Six (العول) The Doctrine of Awl Awl literally means to increase. The doctrine of Awl is applied when the total amount of shares allotted to primary heirs exceeds a whole (i.e. initial base-number). In order to facilitate such a situation the base-number is increased to a number equating the sum of the numerators in the fractional shares. In this situation all the shares are abated proportionately causing the shares of each heir to slightly decrease. The first case of Awl emerged at the era of Umar (May Allah be pleased with him), when a woman died and left behind a husband ퟏ and two sisters. If the husband were to get his full share the sisters ퟐ ퟐ who are entitled to receive would be deprived of receiving their ퟑ full shares, similarly if the sisters were to receive their full shares

54 Islamic Inheritance Laws and Calculations

ퟏ ퟐ then then husband will be deprived of his full share, since and ퟐ ퟑ exceeds a whole. Furthermore, there is no citing from the laws of Shariah stating that one is superior over the other. Umar may Allah be pleased with him gathered the Companions of to discuss the matter. Zaid bin Thabit and ﷺ the Holy Prophet .i.e أعيلوا الفرائض :Abdullah bin Abbaas (RadhiAllahu'anhum) said increase the shares (i.e. the initial Base Number). Umar (RadhiAllahu'anhu) then accepted that opinion and all the Sahabah (RadhiAllahu'anhu) followed him and thus Ijma’h and consensus was formed on this issue.

 Awl occurs when the initial Base Number is either: 6, 12 & 24

12 ع 〈13〉 6 ع 〈8〉 Husband Sisters Mother Wife Sisters Maternal Sibling ퟏ ퟐ ퟏ ퟏ ퟐ ퟏ

ퟐ ퟑ ퟔ ퟒ ퟑ ퟔ 3 4 1 3 8 2

12 ع 〈17〉 24 ع 〈27〉 Wife Daughters Mother Father M. Sisters- Sisters- Mother-Wife

ퟏ ퟐ ퟏ ퟏ ퟏ ퟐ ퟏ ퟏ

ퟖ ퟑ ퟔ ퟔ ퟑ ퟑ ퟔ ퟒ 3 16 4 4 4 8 2 3

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Chapter Eight Distribution of the Estate There are many ways in calculating the actual share of each heir from the estate of the deceased. Share 푆 A simple formula is the SBE × Estate ( × 퐸) Base−Number 퐵 Example: A deceased left behind the following heirs: Father, Mother and a Son and an estate of $900. Estate Base-Number $900 6 Father Mother Son 1 1 4

4 Son × 900 = $600.00 6 1 Mother × 900= $150.00 6 1 Father × 900= $150.00 6

PRACTICE EXERCISE E H Father Mother Son Wife Uncle $150,000 S E Daughter 3 Sisters Wife Uncle 2Brothers $235,222 T I 2 Sons Granddaughter Mother Wife Father $197,556 A R Husband Grandson Father Sister Grandmother $100,000 T S P. Sister 3 M. Brothers Mother Wife Daughter $999,999 E

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Distribution of the Estate based on Percentage In this case it is not necessary for a person to disclose the value of the estate. All that is needed to calculate and distribute the estate of the decease is a list of the surviving heirs. The share of each heir reflects his/her percentage of the entire estate. A simple method of calculating the percentage of each heir is the Share 푆 SBP formula. × 100% ( × 100) Base Number 퐵 From the example given above, using the SBP formula the surviving heirs will receive the following percentages: 1 Father × 100 =16.66 6 1 Mother × 100 =16.66 6 4 Son × 100 =66.66 6 Benefits of using the percentage method: (1) The value of the estate does not have to be disclosed by the heirs. (2) Distribution is much easier especially when the estate is divided into numerous portions. (3) The estate of the deceased normally comprises of different types of wealth. Thus each type can be distributed separately using the given percentages. (4) It is easier for the heirs to understand and execute. Practice Exercise 1 2 3

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Distribution of the Estate among Creditors This occurs when the debts of the deceased is equivalent to, or exceeds the value of his entire estate. In this case, the heirs, as well as the beneficiaries (of the Bequest) will not receive anything from the estate of the deceased as the payments of debts takes precedence over inheritance. Preference will not be given to some creditors over the others rather, all creditors will have rights to the estate. Each creditor will receive from the estate in proportion to his claim i.e. if for example, his claim is ¼ of the entire debts owned by the deceased then he will claim ¼ of the entire estate of the deceased (after funeral expenses). A simple way of calculating the share of each creditor is by using the SDE formula i.e. Share 푆 SDE × Estate ( × 퐸) Debts 퐷 NB: The share refers to each creditor’s share of debts. Example: A person died leaving behind two creditors, Zaid and Umar. The deceased owes them $10.00 and $5.00 respectively. The total value of his entire estate amounts to $12.00 i.e. less than his total debts. If Zaid were to be paid in full then Umar would not be fully compensated and similarly, if Umar were to be paid in full then Zaid would not be fully compensated. Thus each creditor will receive from the estate in proportion to what was owed to them.

$12 (Estate) $15 (Debts) Zaid received $8 from the estate 2 valued $ 12 which is of the entire 3 Zaid Umar estate. The reason being is that his $10 (Shares of Debts) $5 share of debts in proportion to the total debts claimed from the estate ퟏퟎ ퟓ 2 $10 Zaid: × ퟏퟐ =$8 Umar: × ퟏퟐ =$4 of deceased is also i.e. . ퟏퟓ ퟏퟓ 3 $15 Similarly is the case with Umar.

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Practice Exercise 1 2 3 4 5 6 7

Chapter Seven

(النصب) Relations/Nusub It is important to understand the relations between numbers when calculating and distributing the shares of each heir. These relations are relevant in three areas viz (a) Between the Denominators of fractional shares. (b) Between Shares and Heirs of a particular category (c) Heirs and Heirs of different categories. Example: 42 Daughters 4 Wives 10 Sisters A

C ퟐ ퟏ ع ퟑ ퟖ B 16 3 5

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 A- Shows the relation between Heirs and Heirs i.e. of different categories, in this case 6 & 4. The relation which exists is Tawafuq.  B-shows the relation between the Dominators of fractional shares allotted to Primary Heirs i.e. 3 and 8. The relation which exists is Tabayun.  C- shows the relation between the number of Shares and Heirs of a particular category, in this case 10 & 5. The relation which exists is Tadakhul.

Application of Relations: The relation between the Denominators determines the Base- Number which is a reflection of how many portions the estate of the deceased is be divided into. As for the relations between Shares &Heirs and Heirs & Heirs, the objective is to ensure smooth and even distribution by eliminating Kasr (fractions/decimals).

 Relation between Shares & Heirs If Kasr between Shares & Heirs occurs only in one category then two types of relations can exist viz. Tabayun or Tawafuq. Kasr will not exist where there is Tamathul or Tadakhul as distribution is perfect in these two relations. If however, there is a relation of Tadakhul wherein the number of heirs is greater than the number of shares the case will be transformed into Tawafuq.

Example #3 Tawafuq Example # 4 Tadakhul to Tawafuq

(mother, father and six sons) (mother, father and six sons)

In example # 3 (Tawafuq) the common factor (between the number of shares and number of heirs) will be divided by the number of heirs and the result will be multiplied by the original base-number

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Example # 1 Tamathul 6×3=18 Example #2 Tadakhul 6×2=12

(father Mother and five Father sons) 6 Sons (Mother, Mother father Father and two daughters). 8 Sons

1 1 1 1 6 ع ع 6 6 6 6 6 1×3Father 1×3 5 Sons 4×3 Mother 1×2 Father 1×2 2 Daughters 4×2

3 1 3 12 1 2 1 2 8 2 ع 6 6 6 3 1 5 1 1 4 Distribution is perfect, as each son Distribution is perfect, each daughter will receive 1 portion of the estate. will receive 2 portions of the estate. creating a new base-number resulting in perfect distributions. In this case, each son will receive 2 portions of the estate. The multiplicand (Madhrub) of the base-number will also be multiplied by the share of each category (the multiplicand in this case is 3). NB: In a case where there exist more than one common factor, the Highest Common Factor (HCF) would be used. (e.g. 12, 18). The common factors of these two numbers are 2-3-6, however, only the highest of them will be used (i.e. 6).

Example of Tabayun, (father and six sons) 6×6=36 Father 6 Sons 1 ع 6 1×6 5×6 6 30

The number of heirs will be multiplied by the original base-number creating a new base-number. Thereafter distribution will be prefect, each son will receive 5 portions from the estate. Example of Tamathul, Tadakhul and Tawafuq

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24×2= 48 2 Wives 8 Daughters 5 Sisters 1 2 ع 8 3 3 ×2 16×2 5×2 6 32 10 In this example Kasr exists only in one category (i.e. the wives’ category) between the number of shares and number of heirs as the relation is Tabayun. As for the Daughters’ category the relation that exist is Tadakhul and sisters’ category the relation is Tamathul.

 Relation between Heirs & Heirs If Kasr exists in more than one category then the relations between the numbers of heirs in the different categories must be determined. Moreover, if the relation between Heirs & Heirs is determined there is no need to go further in determining the relations between Shares & Heirs. In the case of Tamathul, the number of heirs in any one category is multiplied to the original base-number e.g. (3 daughters, and 3 uncles) 3×3=9 3 Daughters 3 Uncles 2 ع 3 2 ×3 1×3 6 3

Each daughter will receive two portions and each uncle will receive 1portion of the estate.

62 Islamic Inheritance Laws and Calculations

In the case of Tadakhul, the category which has the largest number of heirs, will be multiplied to the original base-number e.g. (4 wives and 12 uncles) 4×12=48 4 Wives 12 Uncles 1 ع 4 1×12 3×12 12 36

Each wife will receive 3 portions of the estate and each uncle will receive 3 portions.

In the case of Tawafuq, the number which is harmonious amongst the number of heirs in each category [i.e. the factor] will be divided by the total number in one category and then multiplied by the total number in the other category. e.g. (4 wives, 18 daughters, and 6 uncles)

24×36=864 4 Wives 18 Daughters 6 Uncles 4~18~6 (4÷2)× (18) =36 1 2 NB: Numbers which are ع 8 3 factors of another are 3×36 16×36 5×36 eliminated as they are 108 576 180 already represented by 27 32 30 their multiple.

In the case of Tabayun, the total number of heirs in one category is multiplied by the total number of heirs in the other category. e.g. (two wives, ten daughters and seven uncles)

24×70=1680

63 Islamic Inheritance Laws and Calculations

2 Wives 10 Daughters 7 Uncles 1 2 2~10~7 10×7=70 ع 8 3 NB: The number (2) is 3×70 16×70 5×70 eliminated as it is 210 1120 350 represented by its multiple 105 112 70 (10).

7~ 4 6 ×28 =168 NB: The relation between both numbers is Tabayun. 4 Sisters Mother 7 G. Daughters Both are multiplied and the 1 2 result is multiplied by the ع 6 3 Base-Number. 1×28 1 ×28 4×28 28 28 112 15~18~4 NB: Between 15 and 18 is 24 ×180=4320 Tawafuq, one of the numbers is divided by the common 15 Uncles 18 Daughters 4 Wives factor thereafter multiplied by 2 1 the other resulting in 90. The ع 3 8 relation between 90 and 4 is also Tawaquf hence the result 5×180 16×180 3×180 is 180 (4÷2 ×90). The result is 900 2880 540 then multiplied by the Base- Number. 60 160 35

PRACTICE EXERCISE

2̅̅ ̅Wives̅̅̅̅̅̅̅̅−̅̅̅ ̅ ̅8̅ ̅Daughters̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅5̅ ̅Sisters̅̅̅̅̅̅̅̅

15̅̅̅̅ ̅Uncles̅̅̅̅̅̅̅̅̅−̅̅̅ 4̅̅ ̅Maternal̅̅̅̅̅̅̅̅̅̅̅ ̅Sisters̅̅̅̅̅̅̅̅̅−̅̅̅ ̅18̅̅̅ ̅Daughters̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅4̅ ̅Wives̅̅̅̅̅̅̅

64 Islamic Inheritance Laws and Calculations

5̅̅ ̅Brothers̅̅̅̅̅̅̅̅̅̅̅ ̅−̅̅̅ ̅ ̅3̅ ̅Daughters̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅3̅ ̅Wives̅̅̅̅̅̅̅

4̅̅ ̅Wives̅̅̅̅̅̅̅̅−̅̅̅ ̅Mother̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅ 7̅̅ ̅Daughters̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅3̅̅ Uncles̅̅̅̅̅̅̅̅

4̅̅ ̅Sisters̅̅̅̅̅̅̅̅̅−̅̅̅3̅̅ ̅Maternal̅̅̅̅̅̅̅̅̅̅̅ ̅Brothers̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅Mother̅̅̅̅̅̅̅̅̅̅−̅̅̅ 7̅̅ ̅Grand̅̅̅̅̅̅̅̅ Daughters̅̅̅̅̅̅̅̅̅̅̅̅̅

Daughter̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅9̅̅ Granddaughters̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅12̅̅̅ ̅Sisters̅̅̅̅̅̅̅̅̅−̅̅̅Mother̅̅̅̅̅̅̅̅̅̅−̅̅̅Husband̅̅̅̅̅̅̅̅̅̅̅

Husband̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ Grandmother̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅11̅̅̅ ̅Brothers̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅Paternal̅̅̅̅̅̅̅̅̅̅̅ Sister̅̅̅̅̅̅̅

Distribution of Shares in a Ratio of 2:1 This distribution relates to the Asabah bil ghair category where both male and female inherit residuary shares. The Male receives twice the amount of the female. A simple method of distribution is to regard one male heir as two heirs.

65 Islamic Inheritance Laws and Calculations

Example #1 8×17= 136 Heirs : 5 + (6×2) =17 5 Sisters 6 Brothers Daughter Wife Female / Male 1 1 :Shares ع 2 8 Each Female: 3 3×17 4×17 1×17 Each Male: 6 51 68 17 Method of Distribution: The two categories that comprises of the Asabah will be regarded as one category. In a case where Kasr exist only in the Asabah category then the relation between the number of heirs and shares will have to be determined. Each male will be regarded as two heirs (as a male gets twice the amount of a female). Thereafter the total shares allotted to the Asabah category will be divided by the number of heirs (in this case 51÷17), the result will be the share of each female and twice that amount will be the share of each male (in this case 3 & 6) Example #2 42 ×22=528 Heirs: 3+8 (4×2) =11 3 Daughters 4 Sons Mother 2 Wives Father Female/ Male 1 1 1 ع 6 8 6 Shares: 13 ×22 4×22 3 ×22 4×22 Each Female: 286 88 66 88 26 Kasr exist in two categories (Asabah and Wives) Each Male: 52 therefore, the relation between the number of heirs in both categories must be determined. The Asabah category consist of 11 heirs (each male is regarded as two heirs) and the wives’ category consists of 2 heirs. The relation that exist is Tabayun. Thus both numbers are multiplied and its result is then multiplied to the base-number.

66 Islamic Inheritance Laws and Calculations

Practice Exercise 1

2̅̅ ̅Wives̅̅̅̅̅̅̅̅−̅̅̅ ̅ ̅8̅ ̅Daughters̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅5̅ ̅Sisters̅̅̅̅̅̅̅̅

5̅̅ ̅Brothers̅̅̅̅̅̅̅̅̅̅̅ ̅−̅̅̅ ̅ ̅3̅ ̅Daughters̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅3̅ ̅Wives̅̅̅̅̅̅̅

4̅̅ ̅Wives̅̅̅̅̅̅̅̅−̅̅̅ ̅Mother̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅ 7̅̅ ̅Daughters̅̅̅̅̅̅̅̅̅̅̅̅̅̅−̅̅̅ ̅3̅̅ Uncles̅̅̅̅̅̅̅̅

Chapter Seven (الرد) The Principle of Radd Radd literally means to return or give back .This principle is applied when the total amount of shares allotted to primary heirs are less than a whole as opposed to the concept of Awl. The remaining shares will be returned (i.e. redistributed) to the Primary Heirs with the exception of the Spouse. The reason being is that only those connected to the deceased through blood relations will receive the extra shares. The spouse is connected to the deceased through marriage and not blood relations.

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NB: In a case where the spouse (husband) is connected through blood relation (e.g. son of her uncle) then he will receive both primary and residuary shares. The principle of Radd is based on the following Quranic Verse: Blood relatives are nearer, one to the other, than other believers. (33:6) Cases of Radd will only exist if the following three conditions prevail: (1) The existence of primary heirs (2) The absence of Asabah categories. (3) There must be a remainder from the estate of the deceased after distributing shares to primary heirs.

 Spouses are not blood relatives, therefore, they will not be eligible to receive anything beyond their initial share. Therefore, if the deceased left behind only a spouse and no other heirs, then after the spouse receives his/her stipulated share, the remaining amount will be deposited in the Baitul-Mal. NB: In our times the Baitul Mal system does not exist therefore, the wealth should be used for the general welfare on the Muslims. If however, there are members from the Third Category (Dhawul Arhaam) together with the spouse then they will receive the remaining amount. The inheritance of the Third Category (Dhawul Arhaam) will be discussed later on. There are four scenarios in which the principle of Radd may exist: 1. One category of heir without the presence of a spouse. 2. Two or more categories or heirs without the presence of a spouse

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3. One category of heir with the presence of a spouse. 4. Two or more categories or heirs with the presence of a spouse. First Case: The Base Number will be based on the number of individuals in that category. e.g. (two grandmothers), (three sisters), (four daughters) etc. Second Case: The Base Number will be based on the total number of shares. e.g. (mother &daughter) (sister, mother & maternal sister) Third Case: The Base Number will be based on the denominator of the fraction allotted to the spouse, firstly the spouse will receive his/her share, thereafter, and whatever remains will be given to the other category. e.g. (husband & daughter) Fourth Case: This is a combination of situations two and three. That is there will exist two Base Numbers in this case, the first Base Number will be the denominator of the spouse’s fraction. Firstly the spouse will receive his/her share then the remainders will be kept aside. The second Base Number will be derived by adding the total shares of the other categories as explained earlier. Thereafter, the relationship between, the number of shares set aside and number of shares allotted to all other heirs (i.e.second base-number) is looked then (التماثل) at. If the relation between both numbers is Tamathul there is no need go further as distribution is perfect. e.g. (wife, grandmother & maternal sisters).

4 (6 3) Wife Grandmother Maternal Sisters ퟏ ퟏ ퟏ

ퟒ ퟔ ퟑ 1 (3) 1 2

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If the relationship between, the number of shares set aside and number of shares allotted to the other heirs (second base-number) then the second base-number will be multiplied (التباين) is Tabaayun to the original base-number. Thereafter the spouse’s initial share will be multiplied the second base-number. As for the shares of each category, it will be determined by multiplying initial shares to the number of shares set aside.

Example: (wife, daughters & grandmother)

8×5=40 (6 5) Wife (Daughters Grandmother) ퟏ ퟐ ퟏ

ퟖ ퟑ ퟔ 1×5 (7) 4×7 1×7 5 28 7

Explanation: The original base-number will be the denominator (8) of the fractional share, the spouse is given her share (1) and the remainders (7) are set aside. The other heirs are given their ퟐ ퟏ fractional shares ( & ). A second base-number (6) will be created ퟑ ퟔ for these heirs. This second base-number will eventually reflect the number shares allotted to these heirs (5).Thereafter the relation between the amount set aside (7) and the second base-number (5) will be looked at. The relation that exists is Tabayun. Thus the second base number (5) will be multiplied by the original base- number (8) resulting in 40. Furthermore, the initial share of the wife will also be multiplied by 5, resulting in 5. The initial shares of the other heirs will be multiplied by 7 (the amount set aside). Thus the daughters will receive 4×7= 28 and the grandmother will receive 1×7=7.

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NB: The relation of Tawafuq will not exist. If however, Tadakhul exist, it will be regarded as Tabayun and the second base-number will be multiplied to the original base-number. Thus is a case where the surviving heirs are: Wife, Sisters, Mother and a Maternal Sibling, the relation between the second base number and what is set aside is Tadakhul. However the second base-number will be multiplied by the original base number as in the case of Tabayun.

4×6=24 (6) Wife (Sisters Mother Maternal Sister) ퟏ ퟐ ퟏ ퟏ

ퟒ ퟑ ퟔ ퟔ 1×6 (3) 4×3 1×3 1×3 6 12 3 3

Practice Exercises

Mother- 3 Maternal Sisters- 2 Paternal Sisters 1

2 Daughter- 4 Granddaughter- Grandmother- 3 Wives

3 Husband- Mother- 5 Daughter- 3 Maternal Brother

4 2 Grandmothers- 2 Wives- 3 Maternal Brothers- 4 Maternal Sisters

5 Husband- Mother- Sister- Paternal Brother

71 Islamic Inheritance Laws and Calculations

Chapter Nine Al- Munasakhah The concept of Munasakha in inheritance refers to a delayed distribution of an estate to heirs of different hierarchical levels (i.e. original heirs and heirs of other original heirs). This occurs when the original heir/s of the deceased die/s before the distribution of the estate.24 Their shares (i.e. of the original heirs), of the estate are now transferred to their heirs. The entire estate can be distributed in a single calculation. There are two scenarios in Munasakha.  First Scenario This is where the original heirs of the deceased and their heirs (i.e their successors) are exactly the same. Take for example, Khalid dies leaving behind a wife (Zainab), three sons (Zaid, Bakr, Umar) and a daughter (Fatima) (all of whom are her children). Zainab then dies before the estate is distributed leaving no other heirs besides her children. Thereafter, Zaid dies leaving behind three siblings (Bakr, Umar and Fatima). Normally, the estate would firstly be distributed amongst the wife and children. Then the wife’s share will be distributed among all the children. Thereafter, the share of the deceased son will be distributed amongst his siblings (i.e. three separate distributions).

1st Distribution 2nd Distribution 3rd Distribution $280 (Khalid) $35 (Zainab) $80 (Zaid) 8 7 5 Fatima- Bakr –Umar- Zaid –Zainab Fatima - Bakr –Umar- Zaid Fatima Bakr Umar

1 2 2 2 1 1 2 2 2 1 2 2

$35 $70 $70 $70 $35 $5 $10 $10 $10 $16 $32 $32

24 ِه ي ُم فا ع لة ِم ن ال َّن سخ ِ بِ م عن ى ال َّن ق ِل والتَّ ح ِوي ِل وال ُم راد ُ بِ ها ُهن ا أ ن ي نت ِق ل ن ِصي ُب ب ع ِض ال و رث ِة بِ م وتِ ِه ق ب ل ال ِق س م ِة إ لى م ن ي ِر ُث ِم نه ُ -رد المحتار

72 Islamic Inheritance Laws and Calculations

Thereafter the shares of all the surviving heirs are tallied.

Fatima (35+5+16)= $56 Bakr (70+10+32)= $112 Umar (70+10+32)= $112 However, these three distributions can be done in one single distribution.

Munasakha – One Distribution $280 (Khalid) 5 Fatima- Bakr – Umar- Zaid –Zainab

1 2 2

푺 × E 푩 $56 $112 $112

 Second Scenario: The distribution becomes a little more complex when the heirs of the second deceased are different from the heirs of the first deceased. For example, if the parents of the wife were alive, then they too would inherit from the estate and similarly, if she has children from a previous marriage or if she were to re-marry, then her heirs will be different from the heirs of the first deceased. Multiple distributions will be done in one, by re-adjusting the original base-number. Shares will be allotted to the heirs of the first diseased. The share of the second deceased (deceased heir) will be kept aside. Thereafter the shares of the heirs of the second deceased will be distributed amongst his/her heirs. The relation between the shares of the second deceased (shares kept aside) and the subordinate base-number can either be: Tamathul, Tawafuq or Tabayun. Nb: All Tadakhul cases will be regarded as Tawafuq.

73 Islamic Inheritance Laws and Calculations

1 2 1st Deceased 6 1st Deceased 12×2=24 Mother Uncle Husband Mother Uncle Husband

1 1 1 1 ع ع 3 2 3 2 2 1 3 4×2 2×2 6

8 4 ---

3 2nd Deceased 3 6 (3) 2nd Deceased (2) 4

Son Son Son Son Son Son Son 1 1 1 1 1 1 1 3 3 3 3

1- In the case of Tamathul, there is no need to go further since the distribution is perfect. 2- In the case of Tawafuq, the common factor between the shares set aside and the subordinate base-number is divided by the latter thereafter, multiplied by the original base-number and consequently the initial shares of the surviving heirs of the first deceased. Therefater, the shares set aside is divided by the common factor and then multiplied to the initial shares of each heir of the second consecutive deceased. 3 4 1st Deceased 6 ×2= 12 st Mother Uncle Husband 1 Deceased 6 ×5=30 Mother Uncle Husband 1 1 ع 1 1 ع 2 3 3 2 2×2 1×2 3 4 2 --- 2×5 1×5 3 10 5 --- 3 (1) 2nd Deceased (2) 6 3 2nd Deceased 5 Son Son Son Son Son Son Son Son Son Son Son 1 1 1 1 1 1 1 1 1 1 1 3 3 3 3 3

74 Islamic Inheritance Laws and Calculations

3- The smaller number will the common factor. It will be divided by the subordinate base number thereafter its result will be multiplied by the original base number. The amount set aside, after being divided by the common factor will then be multiplied by the initial shares of each heir of the second deceased. 4-In the case of Tabayun, the subordinate base-number is multiplied to the original base-number and and consequently the initial shares of the surviving heirs of the first deceased. Thereafter, the shares set aside will be multiplied by the initial share of each heir of the second deceased. The following is a scenario where all three relations exist viz. Tamathul, (4&4) Tawafuq (6&9) and Tabayun (9&4)

75 Islamic Inheritance Laws and Calculations

$2,880 6 4 Zainab 4×4=16×2=32×4=128 Distribution of an Estate Mother Daughter Husband (Valued $2880.00) amongst the Surviving Heirs (Base# 128) Aisha Fatima Zaid 1 1 1

6 2 4 Heirs Shares Estate 1×3 3×3 (3) 1×4

3 ×2 9 4 Maryam 8 $180.00 6 ------

4 Zaid 4 Umar 16 $360.00 A Mother Father Wife Maryam Umar Khadija 1 Khadija 8 $180.00 عصــــــــــــــــــــــــــــــــــبه 4 1×2 2×2 (3) 1×2

2×4 4×4 2×4 Ameer 24 $540.00 8 16 8

9 (3) Fatima (2) 6 Hashim B 24 $540.00 Grandmother Son Son Daughter Aisha Ameer Hashim Ruqaya 1 Ruqaya 12 $270.00 عصـــــــــــــــــــــــــــــــــــــــــــــــــــــبه 6 1×3 2×3 2×3 1×3

3×4 6×4 6×4 3×4 Faruq 9 $202.50 12 24 24 12

9 Aisha 2×2=4 C Ashraf 9 $202.50 Brother Brother Husband

Faruq Ashraf Farzan Farzan 18 $405.00 1 عصـــــــــــــــــــــــــــــــــــــبه 2 1×2 1×2 (2) 2 1×9 1×9 2×9 9 9 18

76 Islamic Inheritance Laws and Calculations

Practice Exercises

1st -Wife- Father-Mother- G Daughter (Fatima)

2nd-Husband-Mother-Daughter-Daughter-Son-Son

1st -Daughter-G.daughter-Grandson-Husband (Ali)

2nd - Wife- Mother-Paternal Sisters-Maternal Brother

1st - Wife Mother Daughter

Amina Khadija Zainab

2nd - Husband Mother Brother Sister

3 Khalid Safiya Hasan Aisha

3rd - Wife Daughter Brother

Karima Saliha Farooq

4th - Wife Wife Daughter G.daughter

Aliya Sakina Abida Safina

77 Islamic Inheritance Laws and Calculations

Simultaneous Deaths Simultaneous Deaths refers to the death of multiple heirs at the same time. Simultaneous deaths may occurred naturally, through human invention, natural disaster, the collapsing of a building and other similar circumstances. In this case there will be no inheritance among the deceased relatives. However, the surviving heirs of the deceased will inherit from them respectively. 25 The reason being is that, there must be certainty in the life of the heir (i.e. he/she must be alive) at the time of the death of the legator. In the case of simultaneous death this factor cannot be conclusively known, as it is impossible to detect the sequence of the deaths. As a result of this uncertainty none of the deceased will inherit from the other.

Chapter Ten

Withdrawal/ )التخارج( Takharuj

Takharuj literally means withdrawal or disassociation. The concept of Takharuj in Islamic Inheritance is an act of reconciliation (Sulh) or agreement among the heirs whereby one or more withdraws from his/her share of the estate (fully or partially) in lieu of a compensation payment. For the validity of Takharuj there must be an approval and joint agreement among the heirs involved.

Takharuj is regarded as a sale contract between two parties. The withdrawing- party is called the Musaalih and the other is called Mukhrij. The Musaalih trades what rightfully belongs to him (through inheritance) for something else of value. Inheritance is a divine transfer of ownership to the heirs of the deceased. Thus the heirs automatically becomes owners of the estate even before its distribution. The concept of Takharuj only occur when there is a compensation payment and can exist in two scenarios viz. 1. When the compensation payment is part of the estate 2. When it is the sole property of an heir/s i.e. the Mukhrij. NB: There can be multiple Musalih, as well as the Mukhrij.

)يقسم مال كل منهم على ورثته األحياء( إذ ال توارث بالشك 25

78 Islamic Inheritance Laws and Calculations

 Scenario # 1 The Musaalih agrees to withdraw (fully or partially) from his share of the estate in lieu a particular item from the estate. In the case of full withdrawal, the designated shares of the Musaalih would be deducted from the base- number, in the case of partial withdrawal, only the withdrawal-amount would be deducted. Thereafter, the compensation payment would be exempted from the estate of the deceased and given to the Musaalih. When the compensation payment is part of the estate then all heirs must be consulted and general consent must be established. Example: A man dies, leaving a wife, mother, daughter and a brother. Thereafter the wife withdraws fully from her shares in lieu of a house owned by the deceased. 24 21 Wife Mother Daughter NB: The House would be removed from the Estate of the deceased and Brother given to the Wife who would have no 1 1 1 .further claim to estate ع 8 6 2 3 4 12 5 ص  Scenario # 2 The Musaalih agrees to withdraw (fully or partially) from his share in lieu of a compensation payment from the property of a specific heir/s (Mukhrij) and not from the estate. In this case the entire estate would be distributed accordingly without any deduction from the base-number. Thereafter, the amount withdrawn would be added to the shares of the relative heir/s.

Example: the wife trades her shares with the mother of the deceased in lieu of a property owned by her.

24 NB: The base-number would Wife Mother Daughter Brother not be reduced nor would there be a deduction in the estate. The 1 1 1 shares of the wife (musalih) will ع 8 6 2 be given to the mother 3 4+3 12 5 (mukhrij). 5 12 7 ص

79 Islamic Inheritance Laws and Calculations

Relinquishment / )التنازل( Tanazul

This refers to cases where the Musalih relinquishes or foregoes his claim of inheritance (partially or fully) i.e. he/she withdraws in partly or fully from the estate without any compensation payment. Tanazul in reality is the act of Hiba (gifting). The method of distributing the gifted shares is based solely upon the instructions of the Musalih (in this case the gifter). Therefore, the Musalih may gift to whomsoever he/she wishes from among the heirs. If however, the Masalih totally relinquishes his/her claim to the estate without specifying to whom the shares should be distributed/gifted to, then the shares should be ploughed back into the estate i.e. the base-number will be reduced accordingly. Valuation and Division of the Estate In order to distribute the estate of the deceased, the assets therein must be physically divided. The division of assets which are fungible/interchangeable (e.g. cash, items of weight, measure or number) is very easy and straight forward. The matter becomes complex when the assets are non- interchangeable (house, land, property etc.). The division of non- interchangeable assets can be done through a mutual agreement among the heirs. Whatever is agreed upon by all the heirs will be take effect provided that there was no element of deceit. If however, a mutual agreement cannot be made, division will be executed forcefully, through an Islamic Court or Panel of Competent Righteous Muslims. An estate consisting of various type of assets may be grouped based on type, thereafter each group divided among the heirs i.e. each and every heir has a share in each and every type of asset. Non- interchangeable assets (e.g. Land and Property) is normally based on a valuation system rather than size and quantity. There are many factors that may influence the value of these assets and thus are taken into consideration when valuating and distributing (e.g. such as location, road-frontage and infrastructure etc.). Whatever is agreed upon by all the heirs will take effect provided that there was no element of deceit. If however, an item (non-interchangeable) having multiple shareholders (heirs) cannot be divided nor can its usage be agreed upon (e.g. car, appliance, furniture etc.) then the asset will be liquidated and the cash will be distributed. The valuation at the time of the actual distribution will be considered and not at the time of the demise of the legator (deceased).

80 Islamic Inheritance Laws and Calculations