Islamic Law Of Inheritance
By: Fahad • 3,044 Words • November 20, 2011 • 1,235 Views
Islamic Law Of Inheritance
Islamic Laws of Inheritance
This article gives an overview of the Islamic laws of inheritance with the aim of increasing the awareness of the Muslim community living in the west regarding this important aspect of Islamic law. The scope of this article is confined to traditional Sunni Islamic law.
When a Muslim dies there are four duties which need to be performed. These are:
1. payment of funeral expenses
2. payment of his/ her debts
3. execution his/ her will
4. distribution of remaining estate amongst the heirs according to Sharia
It is assumed that the preliminary issues have been resolved and we shall confine ourselves principally to discussing the fourth and last duty. The task is to firstly, determine which of the relatives of the deceased are entitled to inherit and secondly, to determine the quantum share entitlement of each of the heirs concerned.
Needless to say Muslims must follow all the commandments of Allah (SWT) as Allah the Almighty says, "It is not for a believer, man or woman, when Allah and His Messenger have decreed a matter that they should have any opinion in their decision. And whoever disobeys Allah and His Messenger, has indeed strayed into a plain error." [Quran 33:36]
The particular importance of the Islamic laws of inheritance is obvious from the verses immediately following those verses giving specific details on inheritance shares, "These are limits (set by) Allah (or ordainments as regards laws of inheritance), and whosoever obeys Allah and His Messenger will be admitted to Gardens under which rivers flow (in Paradise), to abide therein, and that will be the great success.
And whosoever disobeys Allah and His Messenger, and transgresses His limits, He will cast him into the Fire, to abide therein; and he shall have a disgraceful torment." [Quran 4:13-14]
The laws of inheritance take on an even greater prominence in Islam because of the restriction placed by Sharia on the testamentary power of the testator as we shall see later in this article.
The divine justness and equitability of the Islamic laws of inheritance have been correctly appreciated by many non-Muslim scholars such as Professor Almaric Rumsey (1825-1899) of King's College, London, the author of many works on the subject of the Muslim law of inheritance and a barrister-at-law, who stated that the Muslim law of inheritance, "comprises beyond question the most refined and elaborate system of rules for the devolution of property that is known to the civilised world.1"
To understand the Islamic laws of inheritance as a whole it is necessary to consider the system of inheritance that operated within the Arabian Peninsula prior to the revelation of the Quranic injunctions on inheritance. Although we do not have the exact details of the system that operated prior to the Quranic revelations we do know that the system of inheritance was confined to the male agnate relatives ("asaba") of the deceased. In this old customary system only the male agnates (asaba) were entitled to inherit. Amongst the male agnates there were rules of priority, which determined which of the surviving male agnates were entitled to inherit. It is likely that the rules of priority that operate amongst the asaba in Sharia are a carry-over of the old customary agnatic system. In Islamic law the son takes priority over the father who in turn takes priority over the brothers who in turn take priority over the paternal uncles.
As we shall see the Quran does not expressly state the share of the male agnate relatives as such, although it does enact that the share of the male is twice that of a female. The Sunni jurists take the view that the intention of the Quranic injunctions was not to completely replace the old customary agnatic system entirely but merely to modify it with the objective of improving the position of female relatives. The Sunni Islamic law of inheritance is therefore, an amalgamation of the Quranic law superimposed upon the old customary law to form a complete and cohesive system. The rights of the asaba were recognized by the Prophet Muhammad (SAWS) himself. Abdullah ibn Abbas (RA) reported that the Prophet Muhammad (SAWS) said, "Give the Faraid (the shares of the inheritance that are prescribed in the Quran) to those who are entitled to receive it. Then whatever remains, should be given to the closest male relative of the deceased." (Sahih al-Bukhari)
The Shia jurists on the contrary took the view that since the old agnatic customary system had not been endorsed by the Quran it must be rejected and completely replaced by the new Quranic law.
By specifying clear cut entitlement