"Inheritance"

INHERITANCE The Islamic law of succession, known as al-Mawārīth or Ilm al-Farā iḍ (from the terms for inheritance and fixed portioning, respectively) are the detailed laws used to designate the heirs and assign the property rights of a person’s estate after their death. Legal Development Northern Arabian society predominately practiced a purely agnatic form of succession after a person’s death. The deceased’s wealth would pass to relatives with two conditions. One, they must be males in closest proximity to the deceased (an agnatic condition): a son, brother, father, uncle, or cousin. Second, they must be old enough to participate in war. Women and children were excluded in toto from inheritance. The use of the waṣiyyah, a type of bequest or will, was common as well. At the outset of the Medinan period of the Prophet’s mission, testators were required to apportion by way of Waṣiyyah and without prejudice at least some of their estate to both of their parents and their remaining relatives (Quran 2:180-182). This effectively limited the amount the deceased’s agnates would receive, acclimating them to further reforms in the laws of succession. The emigration of Muslims from Mecca and elsewhere to Medina and impending wars put a strain on the ability to inherit from non-emigrant relatives. The institution of Mu ākhā (brotherhood, fellowship) was instituted by the Prophet, pairing Meccan immigrants with native Medinan Muslims (anṣār) and establishing that each would inherit from the other (Quran 7:72). Later this was abrogated (Quran 33:6), leaving fixed portions of the estate and residue for believing family relations, and any waṣiyyah for unbelieving relatives and believers unrelated to the deceased. The inclusion of agnatic relatives in the estate even after all of these reforms is a major point of contention between Imāmi Shiite and Sunni scholars (see below). On the topic of bequests, a minority of legal scholars (Ibn Ḥanbal, Dāwūd al-Ẓāhirī, and others) held that verses 2:180-182 were in fact not abrogated. These verses were merely specified by the subsequent legislation on inheritance. This made the bequest compulsory (waṣiyyah wājibah) for those relatives who may be of close relation to the deceased but are excluded from the inheritance for some reason. An example of this is grandchildren who do not inherit from their grandfather due to their father predeceasing him. This form of mandatory bequest has been codified in the modern Muslim family law of Jordan, Kuwait, Libya, Morocco, Pakistan, Syria, Tunisia, and Yemen. Prior to distribution of the estate Prior to the distribution of the estate, any outstanding liabilities incurred by the deceased must be settled. These liabilities are first and foremost the funeral expenses, followed by the deceased’s debts, then the payment of any bequests (waṣiyyah) made by him prior to death. Funeral costs include any reasonable costs associated with the preparation, transportation, and burial of the deceased. Muslim scholars categorize the debts left by the deceased as either those debts due to God Inheritance – Oxford Encyclopedia of Islam and Law Joe Bradford or those due to man. Debts due to God include any expiations for sins or broken vows (kaffārāt) left unpaid, Zakat which was due at the time of death, and the cost of Hajj if the deceased had never performed it. While the majority held this form of debt was mandatory to pay from the estate, Abu Ḥanīfah did not. Having an intention to perform devotional acts such as Hajj is mandatory for a person, and Abu Ḥanīfah contended that the deceased lacked the ability to form this intention. The one exception to this was if the deceased had made a bequest for these acts to the paid for. Ibn Ḥanbal held that all debts regardless of type are paid after funeral expenses. However, secured debts (those secured by a tangible portion or asset held by the estate) are given preference in payment to unsecured debts. For the others schools of law, secured debts owed to other people are paid before funeral expenses. After funeral expenses, Mālik and al-Shāfi ī gave no preference to which is paid first: unsecured debts owed by the deceased or the debts owed to God. After debts, the bequest is examined and distributed. The aggregate amount the bequest should not exceed one third of the net amount left after the payment of debt (based on a Hadith in Ṣaḥīḥ al-Bukhārī), and no parts can be given to an entitled successor (on the basis of a famous Hadith in Jāmi al-Tirmidhī). Only after these have been settled may the residue of the estate be distributed to the heirs as laid out in the Quran 7:11, “In all cases the allocation will take place after bequests and debts.” Pretexts for succession When analysing any case of succession, first the components of succession must be determined. The testator (muwarrith) may be dead in fact or in law, and leaves behind some form of property to passed on to his or her entitled inheritors (wārith). The Residue (mawrūth) is property eligible for inheritance which is not encumbered by debt (as preceded) and from which bequests have been paid. In order for an inheritor to receive anything of the estate, there must be a pretext nunder which he or she inherits. They must either be blood relatives (nasab) with the deceased (either descendants or ascendants of the deceased), be related through marriage (nikāḥ, i.e. husband or wife), or have a client relationship (walā ) with the deceased. While the majority restricted this relationship between the deceased and his freed slave, causing the freed slave to inherit from the deceased after the Apportioned Heirs and agnates, and the emancipator to inherit from the freed slave in the absence of any eligible successor, some schools of law held a broader definition that included the convert to Islam in the meaning walā , with the caveat that the deceased be a direct cause in his conversion. According to the Mālikī school, there is a fourth pretext by which wealth is inherited: the absence of any successor. In this case, the residue is paid to the public treasury (bayt al-māl). Grounds for inclusion/ exclusions While the pretexts mentioned must be present, there are additional factors that could impact whether an heir could or could not take a share in the estate. First, a court ruling declaring the testator dead can take the place of documented (actual) Inheritance – Oxford Encyclopedia of Islam and Law Joe Bradford death; this is crucial in the case of missing persons. Second, heirs who predeceased the testator receive no share in the estate. Even when the necessary pretexts and grounds for inheritance are operative, there are several grounds to bar inheritors from their right to the estate. Three grounds for exclusion have been unanimously agreed on by Muslim jurists. If one of these grounds from exclusion is present, then the heir is considered non-existent for the purposes of calculating and apportioning the estate. They are killing, difference of religion, and slavery. While jurists debate the inclusion of manslaughter, unintentional, and legally mandated killing as grounds for excluding the killer (or in some cases, the executioner) from inheritance, they are unanimous in that murder (any killing obliging Qiṣāṣ) prevents the murderer from receiving anything from the deceased’s estate, whether that be a bequest or inheritance. This is based on two weakly attested Hadiths (‘The killer does not inherit’ and ‘Nothing is due the killer’), but its authority rests more on unanimous agreement in the early Muslim community and thereafter (Jāmi al-Tirmidhī: kitāb al-farā’iḍ bāb mā jā’a fī ibṭāl mīrāth al-qatīl). If and when the deceased does not share in the faith of his heir, this difference of religion will prevent the heir from receiving anything from the testator’s estate, unless given by bequest. While the Prophetic Hadith states “A Muslim cannot be the heir of a disbeliever, nor can a disbeliever be the heir of a Muslim,” and the majority of scholars applied this generally, Ibn Ḥanbal allowed a Muslim who converted after the death of the testator and before the distribution of the estate to receive whatever share was apportioned to him. A small minority of early scholars allowed for Muslim heirs to receive inheritance from non-Muslim testators in the case when that Muslim is in a non-Muslim land or is in a socially disadvantaged position. Slavery is also grounds for excluding heirs from the estate. In the view of classical Islamic scholarship, slaves are property and property is owned and thus cannot own anything independently. To assign anything of the estate to him or her would be, in effect, enriching the slave’s owner and including in the estate those who have no grounds for inclusion. Apportioned Heirs In normative Sunni inheritance law, heirs to the estate are two types: those whose fixed portions are explicitly mentioned in the Quran or the Sunna (eleven in number), and those who inherit by virtue of agnatic relations ( aṣabah). The Apportioned Heirs are: the husband, wife, father, mother, daughter, son’s daughter, full sister, consanguine sister, the uterine sibling, grandmother and grandfather. Each Apportioned Heirs receives a specified percentage of the estate, which may or may not be reduced due to the presence of other inheritors. The husband is entitled to ½ of the estate in the absence of children and to ¼ if children inherit. Likewise, the wife receives ¼ of the estate in the absence of children, and 1/8 when children inherit (Quran 4:12). The father takes 1/6 in the presence of male descendants, and in some situations will take the residue after all Inheritance – Oxford Encyclopedia of Islam and Law Joe Bradford Quranic distributions. The deceased’s mother will take 1/3 in the absence of children, and 1/6 in their presence (Quran 4:11). The daughter has three situations in which she inherits. By herself, she will take ½ of the estate, and if she is joined by another daughter they will share in 2/3. If, in the case she is joined by the deceased’s son (her brother), she will take an amount half of that of her brother (Quran 4:11). The testator’s son’s daughter inherits in four different situations, three of which are equivalent to the daughter’s mentioned previously. In the case when she inherits along with a daughter, she will take 1/6. There are, however, details as to when she will or will not inherit when joined by her brother and other inheritors that may or may not exclude her. Full sisters (those that are related to the deceased through the same mother and father) inherit in the same manner as daughters mentioned previously. If there is a daughter present, then she will inherit the residue. The consanguine sister (a sister that shares the same father but has a different mother) generally inherits in the same manner as the full sister when she is absent. Uterine siblings, both brothers and sisters (related to the deceased through same mother and different fathers), inherit in two cases. In the absence of any other descendants, the uterine sibling will take 1/6. In the presence of another uterine sibling, regardless if male or female, the group will share in 1/3 equally (Quran 4:12). The grandmother, however many generations removed and regardless of whether maternal or paternal, will inherit 1/6 alone and share in that 1/6 if more that one grandmother is present (Sunan Abī Dāwūd). The case of the grandfather’s inheritance is one of the earliest and most widely disputed cases in inheritance law. In general, the grandfather is treated like the father in the absence of the father, taking 1/3. In the presence of the father, he is excluded. In the presence of male children, he takes 1/6. In some cases, he takes both an apportioned amount as well as the residue. Details of this can be perused in longer works the vast differences on this case that are related directly to how scholars characterized the grandfather’s relationship to the deceased when juxtaposed to the remaining inheritors, here specifically the deceased’s brothers and sisters. The question hinges on how one answers the question of which of the two relationships is closer to the deceased: the one who is similar to the deceased’s father or the one who is equivalent in strength of relationship to the deceased himself? Heirs: Agnatic, Uterine, & Successors unrelated by blood Once the Apportioned heirs specified in the Quran and Hadiths have received their share of the estate, the residue is distributed to the agnatic heirs ( aṣabah). A process known as hindrance (ḥajb) weaves its way through the distribution of the residue to the Apportioned heirs and agnatic heirs ( aṣabah). Priority of payment is based on proximity to the deceased, and therefore the Apportioned heirs will receive their designated percentages first. If in a special case the Apportioned heirs aggregate percentages are greater than 100%, then the portions are reduced according a process known as awl (literally: to reduce). If nothing remains, then the Agnatic heirs take nothing. If there is any residue, then the Agnatic heirs will divide Inheritance – Oxford Encyclopedia of Islam and Law Joe Bradford up the residue. Agnatic heirs are three types. Firstly, the agnate-in-his-own-right ( aṣabah bi-nafsihi) including all male agnates. Daughters, son’s daughters, and sisters both full and consanguine (but not uterine), are considered agnates-due-toanother ( aṣabah bi’l-ghayr) and inherit along with their brothers, taking an amount equal to half their brother’s portion. Lastly, the agnate-with-another ( aṣabah ma a al-ghayr) is the case when full and consanguine sisters coexist with daughters of the deceased and no other inheritors are present. The right of inheritance of the agnatic heir is one of considerable dispute between Sunni and Imami Shiite jurisprudence. Shiite jurists, from a very early period, rejected the custom of awarding agnates inheritance based on the prevailing Arabian custom and instead adhered to the strict letter of the Quran in apportioning the estate and distributing the residue thereafter. When all apportioned and agnatic heirs have received their distributions, the uterine heirs (dhawu al-arḥām) receive the residue. This category includes every blood relative that is not included in the apportioned or agnatic distribution. In the absence of apportioned, agnatic, and uterine heirs (who make up almost all possible blood relations of the deceased) others may inherit. Scholars vary in their inclusion of these subsidiary classes of inheritors. If the husband or wife have taken in a convert, slave, or contracted with a person to assume their liabilities, each of these may inherit in complete absence of others. Relatives that do not have confirmed blood lineage, but are recognized as such, may inherit. Some dispute exists concerning the recognition of a child versus recognition of a brother, as the former would be an admission to possibly illicit relations, barring the child from inheritance in the first place. If the deceased has no family and leaves his estate to an individual, some scholars grant this person the entirety of the estate, while others held the estate is escheated to the Public Treasury (bayt al-māl). Agnates (ʿAṣabah) or Relatives (Qarābah)? The inclusion of Agnatic relatives in the estate is a major point of contention between Imami Shiite and Sunni scholars. Shiite scholars, particularly Imami Shiites, object to the entitlement of aṣabah to the residue of the estate as practiced by the Sunnis. Shiite scholars do not accept the inclusion of the agnates to the exclusion of others. This was expressed succinctly by Ja far al-Ṣādiq (d. 765): “The estate belongs to the nearest relation; any male agnate ( āṣib) can eat dirt.” Shiite scholars base this in part on Quran 6:6 “For men is a portion of that left by the parents and relatives, and for women … from whatever [is left] small or large.” AlKulaynī (d. 941) states, “He did not say: For men to the exclusion of women. Instead the mention of women here was a mercy to them, making it an obligation to give them of the residue regardless of the amount.” For Shiite, relationship (qarābah) is the alternative method to Sunni aṣabah when distributing the residue. Sunni law can be characterized as tribal, resting upon the concept of preservation and promotion of the agnatic family. Shiite, law on the other hand, rests upon the more limited notion that family preservation is achieved Inheritance – Oxford Encyclopedia of Islam and Law Joe Bradford through the improvement of those in greatest proximity to the deceased, i.e., the nuclear family. Qarābah applies equally to remaining family members outside of Quranic heirs. Both males and females, agnatic and uterine relatives, inherit equally. The qarābah system gives priority to the nuclear family (considered the “roots”): parents, children, siblings, and spouses. Next in priority are the “branches,” those connected to the nuclear family in some way, both maternal and paternal, male and female: the uncle and aunt, the cousin and cousin’s children. While Sunni aṣabah would exclude some of these inheritors due to non-agnatic relationship, Shiite law would not. There are three operational rules of qarābah: class, degree, and strength of blood tie. The class of relatives vis-à-vis their right to inherit are best thought of as a series of concentric circles. The inner most circle contains the parents and lineal descendants, the middle contains the grandparents, brothers and sisters, and the outermost circle the uncles, aunts, and their issue. Within each circle, the degree of proximity to the deceased plays a key role. Thus, if the estate is exhausted by the inheritors of the inner most circle, they will de jure exclude those outside of it, and so on, until the outer most rim of the circle is reached. When a group of inheritors are equal in both class and degree, the determining factory is the strength of their blood ties to the deceased. Hence in terms of strength, a full sibling is stronger than than any uterine or consanguine sibling of either sex, followed then by any consanguine relative. When and if there are no heirs of direct relation (i.e., roots) then the branches inherit according to the same three rules but in relation to the “root” they are connected to, as if the “root” were the deceased leaving an estate. More than a mere divergence in sources or juristic opinion, this difference rests on fundamental differences in economic and political theory. On the former, Shiite law sees the agnatic relationship as antithetical to Islam and its inherent equity. A vestige of Jahiliyyah, God sought to eradicate transgression specifically through phasing out the agnatic exclusivity of pre-Islamic succession. On the latter, Sunnis and Shiis disputed on how authority is vested in the community. Shiite law notably took the position that authority is hereditarily vested in the family of the Prophet; likewise the deceased’s wealth is vested in his closest family after him. Special cases In limited cases, the residue of the estate has no remaining agnatic relatives to receive it, such as when a deceased man leaves a wife (taking 1/8) and one daughter (taking 1/2), the residue being 3/8. In such a case the residue is redistributed amongst the apportioned relatives in a process known as radd (literally: return). In another type of case known as awl (literally: to reduce) the aggregate of the apportioned shares equals a total greater than 1, effectively exceeding the value of the estate. The majority of Sunni scholars held that in this case, the estate is treated as a debt settlement and the inheritors as creditors, the apportioned share of each reduced in proportion to their co-creditors and the inheritance considered payment in full. This approach was emphatically chided by the companion Ibn Abbas who, commenting on an inheritance case of a husband (1/2), a sister (1/2), and a mother (1/3), said, “Whoever so wishes, I can imprecate him on the fact that inheritance Inheritance – Oxford Encyclopedia of Islam and Law Joe Bradford cases do not reduce. Indeed, He who enumerated the pebbles of Ālij in number would not place in a case a half, a half, and a third. The two halves have taken the total, so where is there room for a third? If they would put forth those whom God has put forth, and let follow those whom God has made to follow, not a single case would have excess.” Denial of awl is the official opinion of the Imami Shiite school, as well as that of the Ẓāhirī school. In addition to these two archetypical cases, there are a number of other more uncommon cases. Special cases and studies can be found on the inheritance of children dying before birth, hermaphrodites, and groups who die simultaneously in an accident or disaster. Considerable discussion of these cases is mentioned in classical Islamic legal compendiums. Bibliography Esposito, John. Women in Muslim Family Law. Syracuse University Press, 2001. Clarke, L. Shī‫ޏ‬īte Heritage: Essays on Classical and Modern Traditions Coulson, NJ. Succession in the Muslim Family. Cambridge University Press. 1971. Ḥaṭṭab, Muḥammad. Mawahib al-jalil. Tripoli, Libya: Maktabat al-Najaḥ, 1969. Kimber, Richard. The Qur anic Law of Inheritance. Islamic Law and Society, Vol. 5, No. 3, The Islamic Inheritance System (1998), pp. 291-325 Al-Kulayni, Muḥammad ibn Ya qūb. Al-Furū min al-Kāfī. Tehran: Dār al-Kutub alIslāmiyya, 1367. Ibn Ḥazm, Ali b. Ahmad. Marātib al-ijmā . Cairo: Dār Zāhid al-Qudsi, 1983. Al-Mardīnī, Muhammad ibn Ahmed. Sharḥ al-Raḥbīyah. Mịr : Maktabat Muḥammad ʻAlī Ṣubiḥ, [197-?] al-Nawawī, Yahyā ibn Sharaf. Al-majmū sharḥ al-muhadhdhab. Cairo: Dar al-Fikr, 19–. Powers, David S. - On the Abrogation of the Bequest Verses. Arabica, T. 29, Fasc. 3 (Sep., 1982), pp. 246-295 - The Islamic Inheritance System: [Introduction]. Islamic Law and Society, Vol. 5, No. 3, The Islamic Inheritance System (1998), pp. 285-290 - The Islamic Law of Inheritance Reconsidered: A New Reading of Q. 4:12b. Studia Islamica, No. 55 (1982), pp. 61-94 - On Bequests in Early Islam. Journal of Near Eastern Studies, Vol. 48, No. 3 (Jul., 1989), pp. 185-200 Inheritance – Oxford Encyclopedia of Islam and Law Joe Bradford Ibn Qudamah, Abdullah b. Ahmad. Al-mughni sharh Mukhtasar al-Khiraqi. Cairo: Dar Hajr, 1986. Ibn Rushd. Bidāyat al-mujtahid wa nihāyat al-muqtạid. Cairo: Maktabat Ibn Taymiyyah, 1994. al-Sarakhsī, Muḥammad ibn Aḥmad. Kitāb al-mabsūṭ. Beirut: Dar al-Kutub alIlmiyyah, 2001. al-Sīstāni, Ali al-Husayni. Minhāj al-Ṣāliḥīn. Bayrūt, Lubnān : Dār al-Mu‫ގ‬arrikh al‫ޏ‬Arabī, 1993. Joe Bradford Islamic University of Medina Inheritance – Oxford Encyclopedia of Islam and Law Joe Bradford