Laws of Religion

Laws of Islam Concerning Women and Men

 

Inheritance by Men and Women

From Islamic Jurisprudence (fiqh/shariaß):† The Distinguished Juristís Primer of Ibn Rushd, the Risala of al-Shafi‛i and Reliance of the Traveller

 

 

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(Editorís note. Some examples of the laws of inheritance are included here. The details of this topic are too complex to summarize in any detail.)

 

 

Contents

 

Inheritance by men and women (jurisprudence/fiqh/sharia)

 

Determining parentage for inheritance (jurisprudence/fiqh/sharia)

 

Inheritance by non-Muslims (jurisprudence/fiqh/sharia)

 

Those denied inheritance (jurisprudence/fiqh/sharia)

 

Bequests and gifts (jurisprudence/fiqh/sharia)

 

 

Inheritance by men and women (jurisprudence/fiqh/sharia). The scholars* agree that a daughter inherits from her parents half of what a son inherits. If there is only one son and no daughters, he inherits everything; if there is only one daughter and no sons, she gets half of the estate. If there are three or more daughters and no sons, the daughters divide two-thirds of the estate. The majority of scholars agree that two daughters also divide two-thirds of the estate.[1]

 

A husband inherits one-half of his wifeís estate if she had no children or grandchildren (children of her son) to inherit; he inherits one-quarter if she has such inheritors. If a man does not have children or children of a son to inherit, then his wife inherits one-quarter of his estate; she inherits one-eighth of he has such inheritors.[2]

 

If a personís only heirs are his parents, the father gets two-thirds and the mother gets one-third. If a person dies and has one or more sons or children of sons, then each parent inherits one-sixth. If a man dies and only his wife and two parents survive, the wife gets one-quarter, the mother one-quarter and the father one-half. If a woman dies and only her husband and two parents survive, her husband gets one-half, her mother one-sixth and her father one-third.[3]

 

 

Determining parentage for inheritance (jurisprudence/fiqh/sharia).Reliance of the Traveller (Shafiʽi school) specifies that when a married woman has a child, her husband is considered to be the father of the child as long as (1) they have been married more than six months, (2) they could have had sexual intercourse at any time less than four years prior to the birth, and (3) the husband is at least 9Ĺ years old and has intact genitals.[4]

 

When a child is born six months after a marriage is contracted, Abu Hanifa says the child belongs to the husband, and thus will inherit from him whether or not the husband had sexual intercourse with his wife. Malik and al-Shafiʽi say that the child is associated with the husband and thus will inherit from him only if the husband had sexual intercourse with his wife at least six months before the child was born.[5]

 

A man who has been continuously separated from his wife can be associated with her child if the birth occurs no more than four years following the separation Ė this being the maximum duration of pregnancy according to al-Shafiʽi[6] and the Shafiʽi school.[7] The maximum duration for this is five years according to Malik.[8]

 

Reliance of the Traveller (Shafiʽi school) says that a man who is certain that he did not have sexual intercourse with his wife between six months and four years prior to the time she gave birth may deny paternity of the child. He must do this immediately by accusing his wife of adultery (process of lian).[9] He may not deny paternity of the child and accuse his wife of adultery if he has any doubt as to whether he had sexual intercourse with her during the specified time interval prior to the birth.[10]

 

When a son was not acknowledged by a dead parent but is acknowledged by one of two inheriting sons, al-Shafiʽi says nothing is due to that person. Abu Hanifa says that the son who acknowledges the person as his brother is to give him half of the amount that he, the acknowledging son, gets. Malik says that the son who acknowledges that the other person is his brother is to give him the amount he would have gotten if both brothers had acknowledged him as their brother.[11]

 

When there is only one son acknowledged by the dead parent and that son acknowledges that there is another son, Malik and Abu Hanifa say that the person acknowledged by his brother has full inheritance rights as a son of the deceased. Al-Shafiʽi expressed conflicting views on this point.[12]

 

A majority of scholars agree that a child born as a result of unlawful sexual intercourse (zina) is not associated with, and thus does not inherit from, his biological parents.[13]

 

 

Inheritance by non-Muslims (jurisprudence/fiqh/sharia). The scholars agree that a non-Muslim cannot inherit from a Muslim and a Muslim cannot inherit from a non-Muslim.[14]

 

The scholars differ concerning how non-Muslims inherit. Malik say that each group, such as Jews and Christians, inherits within its own group. Abu Hanifa and al-Shafiʽi say that all non-Muslims inherit from each other without regard to whether they are, for example, Jews or Christians.[15]

 

 

Those denied inheritance (jurisprudence/fiqh/sharia). Reliance of the Traveller says that a person who kills another for any reason, lawful or unlawful, cannot inherit from the person he killed.[16]

 

Also, a slave may not inherit property.[17]

 

When an apostate is executed, Malik and al-Shafiʽi say that all the personís wealth goes to the community of Muslims; his relatives get no inheritance. But Abu Hanifa says the Muslim heirs of the apostate inherit as usual.[18]

 

 

Bequests and gifts (jurisprudence/fiqh/sharia). Reliance of the Traveller (Shafiʽi school) explains that a person is permitted to make bequests of up to one-third of his wealth, to be disbursed after his death. The rest of his estate is distributed to heirs according to the Islamic laws of inheritance.[19] A bequest by a Muslim, unlike inheritance, can be made to non-Muslims, even those at war with Muslims. Bequests by Muslims may be made to Jews or Christians who are subjects of the Islamic state and to apostates from Islam. A person who kills someone may validly receive a bequest from the person he killed.[20]

 

A majority of scholars agree that a bequest to an heir is valid only if the other heirs agree.[21] A bequest to another close relative is valid, but reprehensible.[22]

 

The scholars agree that it is permitted to give a gift of all of oneís wealth to a stranger during oneís lifetime.[23]

 

Malik says a gift of all of oneís wealth to one or more of oneís children, while giving nothing to the others, is not valid but giving unequal amounts to oneís children is valid. Al-Shafiʽi, Abu Hanifa, and Ahmad ibn Hanbal say that such gifts are an abomination, but are nevertheless valid.[24]

 

 

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*Islamic scholars disagree on certain points of law based on different methodologies used in deriving the law from the Qurían and the traditions (sunna) concerning the life of Muhammad and his closest companions, particularly as expressed in the compiled hadiths. There are four major schools of jurisprudence in Sunni Islam: the Maliki, the Hanafi, the Shafi‛i and the Hanbali. These names are derived from the individual scholars considered to have been the founders of each school: Malik, Abu Hanifa, al-Shafi‛i and Ahmad ibn Hanbal, respectively. The source texts we have used to prepare our summaries of Islamic jurisprudence contain the legal views of these different founders and schools, as described at Source Texts Used for Laws of Islam.

 

ßThe specific derived laws of fiqh summarized here are often referred to by the more general term sharia law.

 

 

Laws of Religion is a project of the Religion Research Society.

 

Updated October 12, 2016

 

 

Abbreviations used in footnotes:

DJP:The Distinguished Juristís Primer, by Ibn Rushd, translated by Imran Ahsan Khan Nyazee, published by Garnet Publishing Ltd, Reading, UK. Volume 1, 1994. Volume 2, 1996. Limited preview is available here (Volume 1) and here (Volume 2). Full text online and download for Volume 1 is here and here and for Volume 2 is here and here.

RT:††† Reliance of the Traveller: A Classic Manual of Islamic Sacred Law by Ahmad ibn Naqib al-Misri, translated by Nuh Ha Mim Keller, revised edition 1994, published by Amana Publications, Beltsville, Maryland, USA. It can be downloaded as a pdf file from various websites such as this one.

SR:††† al-Shafi‛iís Risala: Treatise on the Foundations of Islamic Jurisprudence, translated by Majid Khadduri, Second Edition, published by The Islamic Texts Society. It can be downloaded here.

●† The sources cited are described on the page Source Texts Used for Laws of Islam.



[1] DJP 51.1.1 (Vol 2, pages 413-415)

[2] DJP 51.1.2 (Vol 2, page 415)

[3] DJP 51.1.3 (Vol 2, pages 415-417)

[4] RT n10.2-10.3 (page 572)

[5] DJP 52.2 (Vol 2, pages 425-437)

[6] DJP 52.2 (Vol 2, pages 425-437)

[7] RT n9.5 (page 568)

[8] DJP 52.2 (Vol 2, pages 425-437)

[9] RT n10.4 (page 573)

[10] RT n10.5 (page 573)

[11] DJP 52.2 (Vol 2, pages 425-437)

[12] DJP 52.2 (Vol 2, pages 425-437)

[13] DJP 52.2 (Vol 2, pages 425-437)

[14] DJP 52.2 (Vol 2, pages 425-437), RT L5.2 (page 476)

[15] DJP 52.2 (Vol 2, pages 425-437)

[16] RT L5.1 (pages 475-476)

[17] RT L5.3 (page 476)

[18] DJP 52.2 (Vol 2, pages 425-437)

[19] RT L3.1 (page 465)

[20] RT L3.13 (pages 469-470)

[21] DJP 50.1 (Vol 2, pages 405-406), RT L3.13 (pages 469-470)

[22] DJP 50.1 (Vol 2, pages 405-406)

[23] DJP 49.1 (Vol 2, pages 397-401)

[24] DJP 49.1 (Vol 2, pages 397-401)