Monday, March 20, 2006

Laws of Inheritance

"Allah commands you regarding your children. For the male a share equivalent to that of two females. " [Quran 4:11]

This first principle which the Quran lays down refers to males and females of equal degree and class. This means that a son inherits a share equivalent to that of two daughters, a full (germane) brother inherits twice as much as a full sister, a son’s son inherits twice as much as a son’s daughter and so on. This principle is however, not universally applicable as we shall see later in verse 4:12, the descendants of the mother notably the uterine brother and uterine sister inherit equally as do their descendants.

"If (there are) women (daughters) more than two, then for them two thirds of the inheritance; and if there is only one then it is half." [Quran 4:11]

Women in this context refers to daughters. The Quran gives the daughter a specific share. In legal terminology the daughter is referred to as a Quranic heir or sharer (ashab al-faraid). The Quran mentions nine such obligatory sharers as we shall see later. Muslims jurists have added a further three by the juristic method of qiyas (analogy). So in Islamic jurisprudence there are a total of twelve relations who inherit as sharers.

If there are any sons the share of the daughter(s) is no longer fixed because the share of the daughter is determined by the principle that a son inherits twice as much as a daughter. In the absence of any daughters this rule is applicable to agnatic granddaughters (son's daughters). The agnatic granddaughter has been made a Quranic heir (sharer) by Muslim jurists by analogy.

If there is only a single daughter or agantic granddaughter her share is a fixed one-half, if there are two or more daughters or agnatic granddaughters then their share is two-thirds. Two or more daughters will totally exclude any granddaughters. If there is one daughter and agnatic granddaughters, the daughter inherits one-half share and the agnatic granddaughters inherit the remaining one-sixth, making a total of two-thirds. If there are agnatic grandsons amongst the heirs then the principle that the male inherits a portion equivalent to that of two females applies.

"And for his parents for each of them there is one-sixth of the inheritance if he has a child, but if he does not have a child and the parents are the heirs then for the mother one-third." [Quran 4:11]

The Arabic word "walad" has been variously translated as child, son, children and offspring by translators. However, there is universal agreement amongst the Sunni Muslim jurists that "walad" here refers to any child or agnatic grandchild (grandchild through son).

If there is a child or agnatic grandchild amongst the heirs then each of the parents inherits one-sixth. In the absence of a child or agnatic grandchild the mother inherits one-third, the share of the father is not mentioned under these circumstances. The father in fact inherits as a residuary (a residuary heir gets whatever remains of the inheritance after the Quranic sharers have been allocated their shares, residuary heirs are generally male agnates) under these circumstances.

To these two Quranic heirs, the mother and the father, the maternal grandmother and paternal grandfather have been added by analogy. The maternal grandmother substitutes the mother in the latter's absence.

"… but if he has brothers (or sisters) then for the mother one-sixth" [Quran 4:11]

The consensus of opinion is that the word "akhwatun" used in the Quranic text means two or more brothers or sisters of any kind. So that any combination of full, consanguine or uterine brothers and sisters, if two or more will mean that the mother inherits a one-sixth share.

"And for you there is one-half of what your wives leave behind if there is no child, but if they leave a child then for you there is one-fourth of what they leave behind; … " [Quran 4:12]

Again according to Islamic law the word "walad" here is interpreted as child or agnatic grandchild. The husband, another Quranic heir, inherits one-half in the absence of a child or agnatic grandchild and one-quarter in the presence of a child or agnatic grandchild.

"And for them one-fourth of what you leave behind if you did not have a child, but if you have a child then for them one-eighth of what you leave behind; …" [Quran 4:12]

This statement gives us the ruling on the share of the wife (widow). The share of the wife is one-quarter in the absence of a child or agnatic grandchild and one-eighth in the presence of a child or agnatic grandchild. Two or more wives share equally in this prescribed share.

Before continuing with the translation of verse 4:12 let us consider a situation where a woman dies leaving behind a husband and both parents as the only heirs.

The husband inherits one-half of the estate, there is no argument on this point. However, if we give the mother a one-third share then the father is left with only one-sixth. Should the male (father) not get twice the share of the female (mother) of equal degree and class?

This problem arose during the caliphate of Umar ibn Khattab (RA). After consultation with the learned companions the majority opinion was that the father should get twice the share of the mother, that is to say, the principle that the male inherits the share of two females is upheld. The father therefore, inherits one-third and the mother one-sixth

In light of this ruling the sentence of verse 4:11 on this matter which reads, "...but if he does not have a child and the parents are the heirs then for the mother one-third." is interpreted to mean, "...but if he does not have a child and the parents are the (only) heirs then for the mother one-third."

"And if a kalala man or woman (one who has neither ascendants nor descendants) is inherited from, and he (or she) has a (uterine) brother or (uterine) sister then for each of them (there is) one-sixth. But if they (uterine brothers and sisters) are more than that then they are sharers in one-third (equally)." [Quran 4:12]

The interpretation of the second half of verse 4:12 has been a source of controversy, one reason being the meaning of the word "kalala". This word "kalala" occurs only in two places in the Quran [4:12 and 4:176] and on both occasions regarding inheritance. "Kalala" may mean "one who leaves neither parent nor child" or "all those except the parent and child". It is generally taken to mean the former.

It is universally agreed that the siblings referred to in this verse are uterine siblings (those with the same mother but different fathers).

The uterine siblings only inherit in the absence of any descendants or ascendants. If there is only one uterine sibling he or she inherits a one-sixth share. If there are two or more uterine siblings they together inherit a one-third share equally.

The heirs mentioned in the Quran (mother, father, husband, widow, daughter, uterine brother, full sister, uterine sister, consanguine sister) together with the three heirs added by juristic method of analogy (paternal grandfather, maternal grandmother and agnatic granddaughter) form a group of heirs called Quranic heirs or sharers (ashab al-furud). These heirs when entitled to inherit are given their fixed shares and the remaining estate is inherited by the residuaries (asaba).

Under Islamic law some of the Quranic heirs, namely the father, paternal grandfather, daughter, agnatic granddaughter, full sister, consanguine sister and the mother, can also inherit as residuaries under certain circumstances.

Certain heirs referred to as primary heirs are always entitled to a share of the inheritance, they are never totally excluded. These primary heirs consist of the spouse relict, both parents, the son and the daughter. All remaining heirs can be totally excluded by the presence of other heirs. There are several rules of exclusion which determine the exclusion of some heirs by the presence of others. It not possible to discuss all these rules in an article of this nature but in brief :

1. a person (e.g. brother) who is related to the deceased through another (i.e. father) is excluded by the presence of the latter,

2. an individual nearer in degree (proximity) to the deceased excludes the one who is remoter within the same class of heirs (son excludes all grandsons),

3. full blood excludes half-blood through father (so a full brother will exclude a consanguine brother but not a uterine brother)

3 Comments:

Blogger beakerkin said...

How positively Jim Crow of you ? Lets see a woman's testimony counts for half a man's. A non Muslim counts for half a Muslim. You need an abacus just to keep track of the Jim Crowe system.

You stated the problem before Children belong to Allah. No children have lives and belong in loving families. They should not be treated as disposable commodities. This is part of the disrespect for human life rife in Islam.

Please let me know the regulations
pertaining to wife beating. Shall we go into honor killings or slavery.

No sale Anum.

Feel free to request a segment.

12:32 PM  
Blogger beakerkin said...

If you do not like the interview
you do not have to answer the question.

Number 1 You will get zero Mohammed questions or scripture questions. I am not a theologan and
uninterested in trading verses.

Number 2 As a guest you will get more hospitality then on a thread.
On a thread about X, Y or Z I can be tough. However as an interviewer
I have to behospitable to guests.

Sharia and the four schools of law are fair game. Islamic history is fair game.

However most probably you will get 3/4 educational questions. I will ignore the Jews blew up the WTC bit for now.

You obviously read fairly well if you can pick up the running gag about Moooooslims, Joooooos , Hindooos and Boooooodist. It is part of a running gag from the start of the blog.

3:11 PM  
Blogger beakerkin said...

The questions will appear tommorow morning.

3:12 PM  

Post a Comment

<< Home