The essence of Law of inheritance of a Muslim is sourced mainly from the Holy Qur’aan.
The Prophet Muhammad (Peace be upon him) classified the knowledge of Mirath (ethical distribution of the deceased’s estate) as half of knowledge (Ibn Ma’adja). According to the principle of inheritance in Islam, the following sequence should be followed:
First the money or wealth left behind by the deceased should be used in the funeral expenses. Shari’ah prescribes the simplest and cheapest funeral whereby the deceased is given the ritual bath, kafan (clothing sheets) and burial. In case the money left behind is not adequate for the completion of the rituals, then these expenses lie upon his relatives, or else the community in that particular area. Secondly, the proceeds of the estate should satisfy all the creditors of the deceased. In fact, in due course, if all of the estate had to be used to pay the debts, then the entitled inheritors would not receive anything from the estate.
Thirdly, out of the remainder, if there is any will or donation in the name of any non-heir, then according to the written or witnessed declaration, a maximum of one-third of the left over would be allowed thereto. A wassiah for an entitled inheritor is null and void. A wassiah exceeding one-third would be adjusted to conform to one-third of the remainder only.
Then, fourthly, the estate goes to the entitled inheritors.
Those inheritors to whom the Koran apportions a particular share are called fara-id. Those inheritors who take the remainder of the whole estate, after the fara-id, are called ‘Asabah. First, the fara-id would inherit the estate and then the rest will be distributed between the ‘Asabahs.
In case there is no ‘Asabah, then in today’s time, the estate goes fully to fara-id as per their share. If there is no fara-id and no ‘Asabah, then any family member, even from mother’s side, may inherit the estate. In the absence of all these, then the whole estate may be distributed to a non-heir if any such clause has been formulated in the will.
According to circumstances affecting the family members, a fara-id member may turn into ‘asabah. A few examples of fara-id are the wife, the husband, daughter, sister and also the parents and grand-father of the deceased. The presence of a son between the daughters brings the children to a first priority ‘Asabah after the fara-id. In the absence of children, then only brothers and sisters may act as ‘Asabah. Stepbrothers and stepsisters may inherit in case there are no brothers and sisters, children or parents. The general rule for male to female share is 2:1.
The inheritance in the case of a single daughter, whose parents are not alive, will be distributed as follows: one-half to the daughter. The other half will go to the ‘asabah. The ‘asabah are divided into groups. In the presence of the first group, the next group does not receive anything. ‘Asabah groups as per their priority order are as follows:
1. Son, grandson, great-grandson…. 2. Father, grand-father great-grandfather…. 3. Brother, nephew (brother’s son), nephew’s son… . 4. Uncle (father’s brother), cousin (father’s brother’s son), cousin’s son…
In the case where there are brothers and uncles and no son or father, then the brothers would take the remainder after the fara-id, leaving the uncles with no share.
The wife is a fara-id and inherits one-eighth of the estate in case she has children. In case there are no children, then she would inherit one-quarter of the estate. In such a case, the rest would go to the brothers and sisters of the deceased. In the presence of children, then after the wife’s share, the children take the rest leaving the brothers and sisters without a share.
This is a brief scenario concerning inheritance.
It is worth noting that the following circumstances stop the sequence of inheritance for these persons:
1. Murderer of the deceased, if he is to inherit from him.
2. Non-Muslim relatives of the deceased.
3. Family members of the desecased if they live in countries that have constant oppression and attacks on Muslims or Islamic symbols publicly (Darul Harb).
A converted Muslim cannot inherit from a non-Muslim parent, and vice-versa.
Considering the legal implications on the inheritance issue and shar’ee prescriptions, it is not advisable to contract a marriage “communauté des biens”. A marriage “séparation des biens” may be adequate during lifetime, but still complicates the shar’ee inheritance scenario after death. Best alternative is to contract religious marriages and abstain from civil marriages, but update a full legal will that should be according to Shar’iah. Any remuneration to the wife’s contributions in a husband-wife business partnership should be compensated during husband’s lifetime, not after his death. Because Koranic precepts are applicable right after the decease of the one concerned.
In any case, the main objective is to distribute our wealth according to Shari’ah. We should know that it is a compulsory duty (far’dh) to distribute our wealth according to the Koran. In this context, advice should be sought from a qualified mufti.