Inheritance

Posted on 04/10/2012 by marina

Wikis > Dictionary of Islam > Inheritance

INHERITANCE
Arabic Fara’iz فراگض, Miras ميراث. The law of inheritance is called ‘ilmu ‘l-fara’iz, or ‘ilm-i-miras. The verses in the Qur’an upon which the law of inheritance is founded are called Ayatu ‘l-Mawaris, the Verse of Inheritance; they begin at the 12th verse of Suratu ‘n-Nisa’, or the Ivth chapter of the Qur’an, and are as follows:-
“With regard to your children, God commandeth you to give the male the portion of two females; and if they be females more than two, then they shall have two-thirds of that which their father hath left; but if she be an only daughter, she shall have the half; and the father and mother of the deceased shall each of them have a sixth part of what he hath left, if he have a child; but if he have no child, and his parents be his heirs, then his mother shall have the third; and if he have brethren, his mother shall have the sixth, after paying the bequests he shall have bequeathed his debts. As to your fathers, or your children, ye know not which of them is the most advantageous to you. This is the law of God. Verily, God is Knowing, Wise!”
“Half of what you wives leave shall be yours, if they have no issue; but if they have issue, than a fourth of what they leave shall be yours, after paying the bequests they shall bequeath, and debts.
“And your wives shall have a fourth part of what ye leave, if ye have no issue; but if ye have issue, then they shall have an eighth part of what ye leave, after paying the bequests ye shall bequeath, and debts.”
“If a man or woman make a distant relation their heir, and he or she have a brother or a sister, each of these two shall have a sixth; but if there are more than this, then shall they be sharers in a third, after payment of the bequests he shall have bequeathed, and debts.”
“Without loss to any one. This is the ordinance of God, and God is Knowing, Gracious!”
The earliest authority in the Traditions on the subject of inheritance is Zaid ibn Sabit, and the present law is chiefly collected from his sayings, as recorded in the Hadis. There are no very important differences between the Sunni and Shia’h law with reference to this question. The highest authority amongst the former is the book as-Sirajiyah, by Siraju ‘d-din Muhammad, A.H. 6000, which has been published with a commentary entitle Mamzuj, by Sir W. Jones, Calcutta, 1792.
The Shi’ah law of inheritance will be found in the Mafatih and the Jami’u ‘sh-Shatat.
The property of a deceased Muslim is applicable, in the first place, to the payment of his funeral expenses; secondly, to the discharge of his debts; and, thirdly, to the payment of legacies as far as one-third of the residue. The remaining two-thirds, with so much of the third as is not absorbed by legacies are the patrimony of the heirs. A Muslim is therefore disabled from disposing of more than a third of his property by will. (See As-Sirajiyah.)
The clear residue of the estate after the payment of funeral expenses, debt, and legacies, descends to the heirs; and among these the first are persons for whom the law has provided certain specific shares or portions, and who are thence denominated Sharers, or zau ‘l-furuz.
In most cases there must be a residue after the shares have been satisfied; and this passes to another class of persons who from that circumstance may be termed Residuaries, or ‘asabah.
It can seldom happen that the deceased should have no individual connected with him who would fall under these two classes; but to guard against this possible contingency, the law has provided another class of persons, who, though many of them may be nearly related to the deceased, by reason of their remote position with respect to the inheritance, have been denominated Distant kindred, or zawu ‘l-arham.
“As a general rule”, says Mr. Ameer Ali, “the law of succession, both among the Shiahs (Shi’ahs) and the Sunnis, proceeds on the assumption of intestacy. During his lifetime a Mussulman has absolute power over his property, whether it is ancestral or self-acquired, or whether it is real or personal. He may dispose of it in whatever way he likes. But such dispositions in order to be valid and effective are required to have operation given is them during the lifetime of the owner. If a gift be made, the subject matter of the gift must be made over to the donee during the lifetime of the donor; he must, in fact, divest himself of all proprietary rights in it, and place the donee in possession. To make the operation of the gift dependent upon the donor’s death, would invalidate the donation. So also in the case of endowments for charitable ir religious purposes. A disposition in favor of a charity, in order to be valid, should be accompanied by the complete divestment of all proprietary rights. As regards testamentary dispositions the power is limited to one-third of the property provided it is not in favor of one who is entitled to share in the inheritance. For example, the proprietor may devise by will one-third of his property to a stranger; should the devise, however, relate to more than one-third, or should it be in favor of an heir, it would be invalid.”
“This restriction on the testamentary powers of a Mussulman, which is not without analogy in some of the Western systems, leads to the consequence that, as far as the major portion of the estate and effects of a deceased propositus is concerned, the distribution takes place as if he had died intestate.”
“Intestacy is accordingly the general rule among the Mussulmans; and as almost in every case there are more heirs than one entitled to share in the inheritance of the deceased, it is important to bear in ming the points of contact as well as of divergence between the Shiah and the Sunni schools.”
“As regards the points of contact, it may be stated generally that both the Sunnis and the Shiahs are agreed on the principle by which the individuals who are entitled to an inheritance in the estate of the deceased can be distinguished from those who have no right. For example, a Mussulman upon his death may leave behind him a numerous body of relations. In the absence of certain determinate rules, it would be extremely difficult to distinguish between the inheriting and the non-inheriting relations. In order to obviate this difficulty and to render it easy to distinguish between the two classes of heirs, it is recognized by both the schools as a general rule, and one capable of universal application, that when a deceased Mussulman leaves behind him two relations, one of whom is connected with him through the other, the former shall not succeed whilst the intermediate person is alive. For example, if a person on his death leave behind him a son and the son’s son, this latter will not succeed to his grandfather’s estate while his father is alive. The other rule, which is also framed with the object of discovering the heirs of a deceased individual, is adopted with some modification by the two schools. For example, on the succession of male agnates, the Sunnis prefer the nearer in degree to the more remote, whilst the Shiahs apply the rule of nearness or propinquity to all cases, without distinction of class or sex. If a person die leaving behind him a brother’s son, and a brother’s grandson, and his own daughter’s son, among the Sunnis, the brother’s son being a male agnate and nearer to the deceased than the brother’s grandson, takes the inheritance in preference to the others, whilst among the Shiahs, the daughter’s son being nearer in blood, would exclude the others.” (Personal Law, by Ameer Ali, p. 41.)
The law of inheritance, even according to Muslim doctors of law, is acknowledged to be an exceedingly difficult object of study; it will, therefore, be impossible to follow it out in all its intricacies, but we give a carefully drawn table by Mr. A. Ramsey on the Sunni law, and a more simple one on Shi’ah inheritance by Mr. Ameer Ali.
I. – SHARERS
* Are always entitle to some shares.
+ Are liable to exclusion by others who are nearer
# Denotes those who benefit by the return
* 1st degree FATHER. (A) – As mere sharer, when a son or a son’s son, how low soever, he takes 1/6. (B) – As mere residuary, when no successor but himself, he takes the whole; or with a sharer, not a child or son’s child, how low soever, he takes what is left by such sharer. (C) – As sharer and residuary, as when there are daughters and son’s daughter, but no son or son’s son, he, as sharer takes 1/6; daughter takes 1/2, or two or more daughters, 2/3; son’s daughter 1/6; and father the remainder as residuary.
+ 2nd degree. TRUE GRANDFATHER. i.e. father’s father, his father and so forth, into whose line of relationship to deceased no mother enters, is excluded by father, and excludes brothers and sisters; comes into father’s place when no father, but does not, like father, reduce mother’s share to 1/3 of residue nor entirely exclude paternal grandmother.
+ 3rd degree HALF BROTHER BY SAME MOTHER take, in the absence of children, or son’s descendants, and father and true grandfather, one 1/6, two or more between them 1/3. R.
4th degree DAUGHTERS; when no sons, take, one 1/2; two or more, 2/3 between them: with sons become residuaries and take each half a son’s share. R.
+ 5th degree SON’S DAUGHTERS; take as daughters, when there is no child; take nothing when there is a son or more daughters than one; take 1/6 when only one daughter; are made residuaries by brother or male cousin how low soever. R.
* 6th degree MOTHER; takes 1/6, when there is a child or son’s child, how low soever, or two or more brothers or sisters of whole or half blood; takes 1/2, when none of these; when husband or wife and both parents, takes 1/3 of remainder after deducting their shares, the residue going to father; if no father, but grandfather, takes 1/3 of the whole. R.
7th degree TRUE GRANDMOTHER, i.e. father’s or mother’s mother, how high soever; when no mother, takes 1/6; if more than one, 1/6 between them. Paternal grandmother is excluded by both father and mother; maternal grandmother by mother only. R. + 8th degree FULL SISTERS, take as daughters when no children, son’s children, how low soever, father, true grandfather or full brother; with full brother, take half share of male; when daughters or son’s daughters, how low soever, but neither sons, nor sons’ sons nor father, nor true grandfather, nor brothers, the full sisters take as residuaries what remains after daughter or son’s daughter have had their share. R.
+ 9th degree HALF SISTERS BY SAME FATHER: as full sisters, when there are none, with one full sister, take 1/6; when two full sisters, take nothing unless they have a brother who makes them residuaries and then they take half a male’s share. R.
+ 10th degree. HALF SISTERS BY MOTHERS ONLY: when no children or son’s children how low soever, or father or true grandfather, take, one 1/6; two of more 1/3 between them. R.
* 11th degree HUSBAND: if no child or son’s child, how low soever, takes 1/2; otherwise 1/4.
* 12th degree WIFE: if no child or son’s child, how low soever, takes 1/4; if otherwise, 1/6. Several widows share equally.
COROLLARY. – All brothers and sisters are excluded by son, son’s son, how low soever, father or true grandfather. Half brothers and sisters, on father’s side, are excluded by these and also by full brother. Half brothers and sisters on mother’s side are excluded by any child or sons child, or son’s child, by father and true grandfather.
II. – RESIDUARIES.
A. – RESIDUARIES IN THEIR OWN RIGHT, being males into whose line of relationship to the deceased no female enters.
(a.) Descendants.
1. Son.
2. Son’s son.
3. Son’s son’s son.
4. Son of No. 3
4A. Son of No. 4.
4B. And so on, how low soever.
(b.) Ascendants.
5. Father.
6. Father’s father.
7. Father of No. 6.
8. Father of No. 7
8A. Father of No. 8.
8B. And so on, how low soever.
(c.) Collaterals.
9. Full brother.
10. Half brother by father.
11. Son of No. 9.
12. Son of No. 10
11A. Son of No. 11.
12A. Son of No. 12.
11B. Son of No. 11A.
12B. Son of No. 12A.
And so on, how low soever.
13. Full paternal uncle by father.
14. Half paternal uncle by father.
15. Son of No. 13.
16. Son of No. 14.
15A. Son of No. 15.
16A. Son of No. 16.
And so on, how low soever.
17. Father’s full paternal uncle by father’s side.
18. Father’s half paternal uncle by father’s side.
19. Son of No. 17.
20. Son of No. 18.
19A Son of No. 19.
20A Son of No. 20.
And so on, how low soever.
21. Grandfather’s full paternal uncle by father’s side.
22. Grandfather’s half paternal uncle by father’s side.
23. Son of No. 21.
24. Son of No. 22.
23A. Son of No. 23.
24A. Son of No. 24.
And so on, low soever
N.B. – a. A nearer Residuary in the above Tables is preferred to and excludes a more remote.
B. Where several Residuaries are in the same degree, they take per capita, not per stripes, i.e. they share equally.
G. The whole blood is preferred to and excludes the half blood at each stage.
B. – RESIDUARIES IN ANOTHERS RIGHT, being certain females, who are made residuaries by males parallel to them; but who, in the absence of such males, are only entitled to legal shares. These female Residuaries take each half as much as the parallel male who makes them Residuaries.
1. Daughter made Residuary by son.
2. Son’s daughter made Residuary by son’s son.
3. Full sister made Residuary by full brother.
4. Half sister by father made Residuary by her brother.
C. RESIDUARIES WITH ANOTHER, being certain females who become residuaries with other females.
1. Full sisters with daughters or daughter’s sons.
2. Half sisters by father.
N.B. – When there are several Residuaries of different kinds or classes, e.g. residuaries in their own right and residuaries with another, propinquity to deceased gives a preference; so that the residuary with another when nearer to the deceased that the residuary himself, is the first.
If there be Residuaries and no Sharers, the Residuaries take all the property.
If there be Sharers, and no Residuaries, the Sharers take all the property by the doctrine of the “Return.” Seven persons are entitled to the Return. 1st, mother; 2nd, grandmother; 3rd, daughter; 4th, son’s daughter; 5th, full sister; 6th, half sister by father; 7th, half brother of sister by mother.
A posthumous child inherits. There is no presumption as to commorients, who are supposed to die at the same time unless there be proof otherwise.
If there be neither Sharers nor Residuaries, the property will go to the following class (Distant Kindred).
III. -DISTANT KINDRED.
Comprising all relatives, who are neither Shares nor Residuaries.
CLASS I.
Descendants: Children of daughters and son’s daughters.
1. Daughter’s son.
2. Daughter’s daughter.
3. Son of No. 1.
4. Daughter of No. 1
5. Son of No. 2.
6. Daughter No. 2, and so on, how low soever, and whether male or female.
7. Son’s daughter’s son.
8. Son’s daughter’s daughter.
9. Son of No. 7.
10. Daughter of No. 7
11. Son of No. 8.
12. Daughter of No. 8, and so on, how low soever, and whether male or female.
N.B. – (a) – Distant kindred of the first class take according to proximity of degree; but, when equal in this respect, those who claim through an heir, i.e. sharer or residuary, have a preference over those who claim through one not an heir.
(B) – When the sexes of their ancestors differ, distribution is made having regard to such difference of sex, e.g. daughter of daughter’s son gets a portion double that of son of daughter’s daughter, and when the claimants are equal in degree, but different in sex, males takes twice as much as females.
CLASS 2.
Ascendants: False grandfathers and false grandmothers.
13. Maternal grandfather.
14. Father of No. 13, fathers of No. 14, and so on, how high soever (i.e. all false grandfathers.
15. Maternal grandfather’s mother.
16. Mother of No. 15, and so on, how high soever (i.e. all false grandmothers).
N.B. – Rules (a) and (B), applicable to class 1, apply also to class 2. Further (G) when the sides of relation differ, the claimant by the paternal side gets twice as much as the claimant by the maternal side.
CLASS 3.
Parent’s Descendants.
17. Full brother’s daugther and her descendants.
18. Full sister’s son.
19. Full sister’s daughters and their descendants, how low soever.
20. Daughter of half brother by father, and her descendants.
21. Son of half sister by father.
22. Daughter of half sister by father, and their descendants, how low soever.
23. Son of half brother by mother.
24. Daughter of half brother by mother and their descendants, how low soever.
25. Son of half sister by mother.
26. Daughter of half sister by mother, and their descendants, how low soever.
N.B. – Rules (a) and (B) applicable to class 1, apply also to class 3. Further (G) when two claimants are equal in respect of proximity, one who claims through a residuary is preferred to one who cannot so claim.
CLASS 4.
Descendants of the two grandfathers and the two grandmothers.
27. Full paternal aunt and her descendants.*
28. Half paternal aunt and her descendants. *
29. Father’s half brother by mother and his descendants. *
30. Father’s half sister by mother and her descendants. *
31. Maternal uncle and his descendants. *
32. Maternal aunt and her descendants. *
* Male of female, and how low soever.
N.B. (E) – The sides of relation being equal, uncles and aunts of the whole blood are preferred to those of the half, and those connected by same father only, whether males or females, are preferred to those connected by the same mother only. (N) Where sides of relation differ, the claimant by paternal relation gets twice as much as the claimant by maternal relation. (T) Where sides and strength of relation are equal, the male gets twice as much as the female.
GENERAL RULE. – Each of these classes excludes the next following class.
IV. – SUCCESSOR BY CONTRACT OR MUTUAL FRIENDSHIP.
V. – SUCCESSOR OF ACKNOWLEDGED KINDRED.
VI. – UNIVERSAL LEGATE.
VII. – PUBLIC TREASURY.
A. SYNOPTIC TABLE OF SHI’AH INHERITANCE.

[For the Muslim law of inheritance in English, refer to Sir William Jones’ translation of the Sirajiyah (Calcutta, A.D. 1792), reprinted by Mr. Almaric Ramsey, A.D. 1869. The Muslim Law of Inheritance, by Mr. N. B. E. Baillie, A.D. 1832; by Mr. S. G. Grady, A.D. 1869; also see Personal Law of the Muslims, by Mr. Ameer Ali, 1880. The Arabic works on the subject are: For Sunni law, as-Sirajiyah, ash-Sharif’iyah, Hidayah, Durru ‘l-Mukhtar; for Shia’ah law. Jami’u ‘sh-Shata, Mafatih, Shara’i’u ‘l-Islam, Irshad-i-Allamah.]

Based on Hughes, Dictionary of Islam