LAWFUL INHERITANCE IN ISLAM IN LIGHT OF QURAN AND SUNNAH

(PART ONE)

In Islam, inheritance is a right granted by Allah to certain close relatives of the deceased. The Qur’an and Hadith have laid down specific conditions as to who is entitled to inherit and in what amount. The lawful heirs are those who are clearly defined by Islamic law.

The Qur’an: Surah An-Nisaa (4:11, 4:12, 4:176) describes the distribution of inheritance.

Sunnah: The Prophet ﷺ said: “Distribute to the heirs their inheritance, and the remainder to the nearest male relative.” (Bukhari and Muslim)

1. (A) Dhaw-u’l-Fara’idh:  These are the people who are assigned a specific share of the deceased’s estate. There are twelve people: four males – father, grandfather, maternal brothers (uterine brothers), and husband; and eight women – wife, only daughter, granddaughter (daughter of a son), mother, grandmother (i.e. mother’s mother or father’s mother), full sister, consanguine sister, and uterine sister.
2. The father gets a share of one-sixth (1/6) if the deceased leaves a son or grandson. If there is no son or grandson, the father is also considered as ‘Asaba and is added to that share.
3. The grandfather (father’s father) gets a share like the father but with three conditions:
4. According to Imam Bukhari and Imam Muslim, the presence of the father deprives even the brothers of the deceased of the right to inherit, but this does not apply to the grandfather. However, Imam Abu Hanifa says that the presence of the grandfather deprives the brothers of the deceased of the right to inherit.
5. If the deceased’s father is alive, the mother gets the remaining share after the wife’s share has been taken.

iii. The wife has no share in the inheritance if the deceased’s father is alive, but she gets a share if the grandfather is alive and the father is not.

3. Uterine brothers and sisters: one gets one-sixth (1/6), but if there are more than one, they get one-third (1/3) together.
4. The deceased’s husband gets one-half (1/2) of the property if the wife has no children; but if there are children, he gets one-fourth (1/4).
5. The wife gets one-fourth (1/4) if the husband has died childless; but if there is a child, he gets one-eighth (1/8).
6. An only daughter gets one-half (1/2) if she is alone, and two-thirds (2/3) if there are more than one. If there is a son, the daughters will be ‘Asaba, and the son will get twice what the daughter gets. Granddaughters take the place of daughters, but if there is one daughter and one or more grandsons, the grandson gets one-sixth (1/6). A granddaughter gets nothing if the deceased leaves a son, but if he leaves both grandsons and granddaughters, they will share as ‘Asaba, and the grandson gets twice as much as a daughter.
7. A full sister gets one-half (1/2) if she is alone, and two-thirds (2/3) if there are more than one.
8. A consanguine sister gets one-half (1/2) if she is alone, and two-thirds (2/3) if there are more.
9. A mother gets one-sixth (1/6) if there is a child or a grandson, and one-third (1/3) if there is no child.
10. A grandmother (i.e. mother’s mother or father’s mother) gets one-sixth (1/6) if there is one or both. The maternal grandmother does not inherit if the deceased’s mother is alive, and the paternal grandmother does not inherit if the deceased’s father is alive.

(B) Asaba (Inheritance of the Residues) after the heirs of the first group have received their shares, the remainder is given to the nearest male relatives (Asaba) – that is, those who are not affected by female relations. The Asaba do not have a specific share. If there is no Dhaw-u’l-Fara’id, then the entire property goes to them. If the Dhaw-u’l-Fara’id have received their shares, the remainder is given to the Asaba. These are among the Asaba:

1. Son: he gets the residue first. A daughter gets half of a son’s share. Grandchildren get nothing if the deceased’s son is alive. If the son is not alive, then the grandson gets it. If there is more than one son, they share equally.
2. The father, grandfather and great-grandfather are also counted as Dhaw-u’l-Fara’id, but if there is no son or grandson, then the father becomes the ‘Asaba. If the father is absent, the grandfather is given that position.
3. If there is no son, grandson, father or grandfather, then the male brother takes the inheritance as the Asaba. If there is no brother, then the son of a brother or the grandson of a brother receives the inheritance. Men get twice as much as women.
4. If there is none of the above, then the consanguine brother has the right to inherit more than the son of a full brother.
5. Then comes the full paternal uncle.
6. C) Dhaw-u’l Arham (Related Through Women)

This is the last group, and it is very rare to get a share of the inheritance. The following fall into this group: 1. Daughter’s son and daughter’s daughter. 2. Daughter’s son and grandson’s daughter along with their children. 3. Maternal grandfather, maternal grandfather, maternal grandfather, maternal grandmother, sister’s children, paternal sister and maternal sister, etc. In the event that there is no Dhaw-u’l-Fara’id or Asaba, then the inheritance can be inherited by Dhaw-u’l-Arham according to the provisions of Islamic Fiqh

(Part Two)

The Status of the Claimed Child (al-Mustalḥaq) in Islamic Inheritance

1. Meaning of Istilḥāq Istilḥāq is the act of a man claiming or acknowledging that a certain child is his and including him in his lineage, on the basis of lineage. This is done by a declaration such as: “This is my son.” The purpose of istilḥāq is to establish a genetic relationship between the child and the father, which can affect inheritance, lineage and marriage rights.
2. Ruling on Istilḥāq in Islamic Fiqh

• If a child is born to a lawful slave (who was under the lawful possession of the man), then the child is lawful and is allowed to inherit.
• If a child is born of adultery, even if the man acknowledges him as his, he cannot inherit from her or from the man’s lineage.
• If the child has no other known father, and the man acknowledges that he is his without evidence of adultery, then istilḥāq is considered according to the provisions of different schools of thought.

2. Conditions for Istilḥāq for a Child to Inherit

• The child has no other known father.
• The acknowledgement is made while the father is still alive.
• There is no evidence of adultery or legal defect.
• The acknowledgement is made openly, not under duress.
• The child is of an age or circumstances acceptable by Islamic law (for example: the period of legal pregnancy is between 6 months and 2 years after divorce or death of the husband).

3. Summary of Various Circumstances is the lineage acceptable? Does the child inherit? Scholars’ Opinions A child of a lawful slave girl yes
4. All schools accept it A child of adultery no He cannot inherit according to all He has no other father acknowledged while alive yes Under certain conditions Acknowledged after death no Not acceptable without evidence Scholars’ Statements on Istilḥāq Hanafi School Imam Abu Hanifa says: a child can be connected to the father and inherit if:

• He has no other known father.
• The acknowledgement was made while the man was alive.
• If the man is dead and did not make a declaration of acceptance before death, istilḥāq will not be accepted. Their evidence: Hadith of the Prophet (ﷺ): “Al-walad lil-firāsh walil-‘āhir al-ḥajar” “A child is of the bed (of marriage), and he has no right to the adulterer.” (Bukhari and Muslim) Maliki School Imam Malik allows istilḥāq if:
• There is no evidence of adultery.
• The child is not the result of adultery.
• An illegitimate child cannot inherit even if claimed by the father. ØThey focus heavily on the issue of the validity of the marriage and the honor of lineage. Shafi‘i School Imam ash-Shafi‘i accepts istilḥāq if:
• The child has no other known father.

• The confession is made voluntarily and there is no evidence of adultery.
• The requirement of confession before death is very important. ØThese schools pay more attention to precautions to protect the accuracy of the lineage and avoid fraud. Hanbali School Imam Ahmad bin Hanbal accepts istilḥāq on the following conditions:
• No other father claims the relationship.
• The confession is made openly, and the child is within the acceptable period (legal pregnancy).
• The confession must be made while the man is alive. ØThis also takes into account legal evidence (e.g. testimony, duration of pregnancy, etc.). Decision of the Qadhi (Islamic Judge) In case of doubt, the Qadhi has the authority to use evidence (including modern ones such as DNA) to rule on istilḥāq. The decision of the Qadhi is considered final in the execution of the inheritance.
• Assumary ØA legitimate child or a child of a lawful wife: inherits according to the law. Ø
• A child of adultery: does not inherit even by recognition.
• A child who is claimed: inherits if the conditions of istilḥāq are met.
• These conditions vary slightly between schools of thought but their basic aim is to protect the legitimacy of lineage and the right to inheritance.