At a glance about Inheritance in Islam
Inheritance is the entry of living persons into
possession of dead persons'property and exists in
some form wherever the institution of private
property is recognised as the basis of the social and
economic system. The actual forms of inheritance and
the laws governing it, however, differ according to
the ideals of different societies.
The law of inheritance in Islam is based upon five
main considerations:
- To break up the concentration of wealth in
individuals and spread it out in society.
- To respect the property right of ownership of
an individual earned through honest means.
- To hammer in the consciousness of man the
fact that man is not the absolute master of
wealth he produces but he is its trustee and
is not,therefore, authorised to pass it on to
others as he likes.
- To consolidate the family system which is
the social unit of an Islamic society.
- To give incentive to work and encourage
economic activity as sanctioned by Islam.
In the pre-Islamic world and even in modern
societies the law of inheritance has so many evils in
it, which may be summed up in the following points:
- Women had been completely denied the share of
inheritance. They were rather regarded as
part of the property of the deceased and,
therefore,their right to property by
inheritance was out of question.
- In pre-Islamic Arabia and other countries
where there had been tribal societies not
only women were deprived of the right of
inheritance but even weak and sick persons
and minor children were given no share in it,
as the common principle of inheritance was
that he alone is entitled to inherit who
wields the sword.
- Then in certain societies there had been
existing the law of primogeniture and it
exists even today in some of the so-called
civilised parts of the world which entitles
only the eldest son to inherit the whole of
the father's property or to get the lion's
share.
Islam introduced so many reforms in the laws of
inheritance which can be succinctly summed up as
follows.
- It defined and determined in clear-cut terms
the share of each inheritor and imposed
limits on the right of the property-owner to
dispose of his property according to his whim
and caprice.
- It made the female, who had been prevously
thought a chattel, the co-sharer with the
male and thus not only restored her dignity,
but safeguarded her social and economic
rights.
- It laid the rules for the break-up of the
concentrated wealth in the society and helped
in its proper and equitable distribution
amongst a large number of persons.
- It gave a death-blow to the law of
primogeniture and thus provided the
democratic basis for the division of the
property of the deceased.
The above are some of the distinguishing features
of the Islamic law of inheritance. While laying down
the rules for the distribution of the estate of the
deceased,the first principle to be observed is that
the property both movable and immovable can be
distributed after meeting the following obligations :
- funeral expenses;
- clearing off the debts incurred by the
deceased;
- payment of bequest, if any, to the extent of
one-third of the total assets. It may be
remembered that the Mahr of the wife, if it
had not been paid, is included in the debt.
Moreover, it is not lawful to make a bequest
in favour of a person who is entitled to a
share in the inheritance.
Four persons cannot get inheritance:
- (a) a fugitive slave who has fled away from
his master,
(b) one who has murdered one's predecessor
intentionally or unintentionaly
(c) one who professes a religion other than
Islam,
(d) one living in Dar-ul-Harb cannot inherit
the property of one living in Dar-ul-Islam
and vice versa.
According to Islam, the heirs have been divided
into three classes.
(A) Dhaw-u'l-Fara'id are those persons who have a
right to definite shares in assets left by the
deceased. These sharers are twelve in number; four
males: father, grandfather, uterine brothers and
husband; and eight females: wife, single daughter,
son's daughter, mother, grandmother, full sister,
consanguine sister, uterine sister.
(B) When the heirs of the first group have
received the respective shares, the residue of the
assets falls to the share of those relatives who are
called Asaba which, according to the Shari'ah,
implies those relatives in whose line of relationship
no female enters. This is the second group of
inheritors.
(C) The last category of inheritors are known ad
Dhaw-u'l Arham, i.e. relations connected through
females, but it is in extremely rare cases that they
get any share in the inheritance. The following
relatives come under this category.
To give a perspective to reader how the division
amongst each the heirs are, an example can be shown
as belows:
Al Muwatta, Book 27, Number 27.1.0a:
Yahya related to me from Malik,
"The generally agreed upon way of doing things
among us and what I have seen the people of knowledge
doing in our city about the fixed shares of
inheritance of children from the mother or father
when one or other of them dies is that if they leave
male and female children, the male takes the portion
of two females. If there are only females, and there
are more than two, they get two thirds of what is
left between them. If there is only one, she gets a
half. If someone shares with the children, who has a
fixed share and there are males among them, the
reckoner begins with the ones with fixed shares. What
remains after that is divided among the children
according to their inheritance.
"When there are no children, grandchildren
through sons have the same position as children, so
that grandsons are like sons and grand-daughters are
like daughters. They inherit as they inherit and they
overshadow as they overshadow. If there are both
children and grandchildren through sons, and there is
a male among the children, then the grandchildren
through sons do not share in the inheritance with
him.
"If there is no surviving male among the
children, and there are two or more daughters, the
granddaughters through a son do not share in the
inheritance with them unless there is a male who is
in the same position as them in relation to the
deceased, or further than them. His presence gives
access to whatever is left over, if any, to whoever
is in his position and whoever is above him of the
granddaughters through sons. If something is left
over, they divide it among them, and the male takes
the portion of two females. If nothing is left over,
they have nothing.
"If the only descendant is a daughter, she takes
half, and if there are one or more grand-daughters
through a son who are in the same position to the
deceased, they share a sixth. If there is a male in
the same position as the granddaughters through a son
in relation to the deceased, they have no share and
no sixth .
"If there is a surplus after the allotting of
shares to the people with fixed shares, the surplus
goes to the male and whoever is in his position and
whoever is above him of the female descendants
through sons. The male has the share of two females.
The one who is more distant in relationship than
grandchildren through sons has nothing. If there is
no surplus, they have nothing. That is because Allah,
the Blessed, the Exalted, said in His Book, 'Allah
charges you about your children that the male has the
like of the portion of two females. If there are more
than two women they have two thirds of what is left.
If there is one, she has a half.' (Sura 4 ayat 10)
Also see Al Muwatta, Book 27, Number 27.8.4 for
other parantage of basic of the law.
And then, take a look at some proofs about legacy
rules in the pre-Islamic period:
Sahih Bukhari Volume 8, Book 80, Number
731:
Narrated Ibn 'Abbas:
(During the early days of
Islam), the inheritance used to be given to one's
offspring and legacy used to be bequeathed to the
parents, then Allah cancelled what He wished from
that order and decreed that the male should be given
the equivalent of the portion of two females,
and for the parents one-sixth for each of them, and
for one's wife one-eighth (if the deceased has
children) and one-fourth (if he has no children), for
one's husband one-half (if the deceased has no
children) and one-fourth (if she has children)."
Number 27:5-11
And Moses brought their cause before the LORD. And
the LORD spake unto Moses, saying,
The daughters of Zelophehad speak right: thou shalt
surely give them a possession of an inheritance among
their father's brethren; and thou shalt cause the
inheritance of their father to pass unto them. And
thou shalt speak unto the children of Israel, saying,
If a man die, and have no
son, then ye shall cause his inheritance
to pass unto his daughter. And if he have no
daughter, then ye shall give his inheritance unto his
brethren.And if he have no brethren, then ye
shall give his inheritance unto his father's brethren.
And if his father have no brethren, then ye shall
give his inheritance unto his kinsman that is next to
him of his family, and he shall possess it: and it
shall be unto the children of Israel a statute of
judgment, as the LORD commanded Moses.
The first concentration of the legacy according to
the Bible verse above is to give the inheritance
share to the male children at the first priority.
If any boys is present, the woman can't receive
anything. Afterwards, if the daughter is not present,
the legacy is bequethed to merely male side in
further relationship of the family.
Deuteronomy 27:15-17
If a man have two wives, one beloved, and another
hated, and they have born him children, both the
beloved and the hated; and if the firstborn son be
hers that was hated: Then it shall be, when he maketh
his sons to inherit that which he hath, that he may
not make the son of the beloved firstborn before the
son of the hated, which is indeed the firstborn: But
he shall acknowledge the son of the hated for the
firstborn, by giving him a double portion of all that
he hath: for he is the beginning of his strength; the
right of the firstborn is his.
As we look at, in the polygamy session, the
heritage is only bequethed amongst the firstborn son.
The female receives nothing.
