MWANGA MASTULLAH: Intestate Succession Under Muslim Law

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Mwanga Mastullah Ashah

This article analyses the interstate succession of Muslims. Muslim interstate succession is completely governed by Muslim Law (Sharia Law).

Shariah law is based on the al-Quran, al-Sunnah, the consensus of the Prophet companions and their ijtihad (the process of making a legal decision by independent interpretation of the legal sources, the al-Quran and the Sunnah). In the al-Quran, there are two verses related to inheritance which are the mujmal verse and the mufassal verse. The verses in the first category explain the beneficiaries‟ rights in general without discussing their portions in detail.

While the verses in the second category, which is the al-mawarith verse, Allah s.w.t. explained in detail regarding the beneficiaries and the portions or shares for each of the beneficiary.

Among the verses that are mujmal in nature, Allah s.w.t commanded meaning:

 “For men is a share of what the parents and close relatives leave, and for women is a share of what the parents and close relatives leave, be it little or much – an obligatory share”1
 “But those of [blood] relationship are more entitled [to inheritance] in the decree of Allah. Indeed, Allah is Knowing of all things”2

From the above two verses from al-Quran it is insisted that every person has the right on succession of the property of their parent or close relatives regardless of gender or any other basis moreover the second verse is a guide line in determining the route of heirs. It gives the Impression that the heirs should be determined according to the blood relationship.

The principle of inheritance distribution in Islam is that the portion for a male beneficiary is equivalent to two parts of the female beneficiary. The distribution of inheritance in such a case must be made based on the method that a male beneficiary’s portion is equivalent to two parts of the female beneficiary’s portion3.

As per these principles the heirs under the Muslim law of inheritance can be admitted into two levels

LEVEL I – PRIMARY (Immediate) HEIRS
1. The SPOUSE (Husband or a maximum of four Wives)
2. The CHILDREN (Sons and Daughters)
3. The PARENTS (Father & Mother)
4. The GRANDCHILDREN (Sons’s SON or Son’s DAUGHTER only)
(Applicable only when the SON is already deceased only and has offspring)

LEVEL II – SECONDARY HEIRS
1. The GRANDPARENTS (Paternal and Maternal)
2. The BROTHERS and/or SISTERS (In the absence of Father and Son ONLY)
3. The UNCLES and/or AUNTS (In the absence of Grandparents ONLY)
4. The NEPHEWS and/or NIECES (In the absence of Brothers and Sisters ONLY)

Under Islamic Law, the primary beneficiaries of a deceased person are his/her IMMEDIATE (Level I) Heirs. Spouse(s), Children, Parents and Grandchildren (if children are deceased only). The Grandchildren who are entitled are only the Son’s Son or the Son’s Daughter. Daughter’s children are not entitled even if the Daughter is deceased. In the absence of some or all of these heirs the secondary beneficiaries (Level II) become Heirs under various conditions. In the absence of a particular Heir (ex:Uncle) if and when he/she is entitled the children of that Heir become eligible.

Standard shares allocated to primary and secondary heirs under Shariah law (for SHAFI SECT)

1. Husband
Gets 1/2 if his wife (the deceased) does not have any children (male or female) or grandchildren or younger, or 1/4 if the deceased has a child (male or female) or grandchildren or younger.

2. Wife
Gets 1/4 if the deceased (the husband) does not have any children (male or female) or grandchildren or younger, or 1/8 if the deceased has a child (male or female) or grandchildren or younger.

3. Father
Gets 1/6 if the deceased has a son, or a son from a son or younger, or 1/6 and asabah4 if the deceased has a daughter, or asabah if the deceased does not have any children (male or female), daughter to a son or younger.

4. Grandfather (father to a father)
The position of a grandfather is similar to the father, but the grandfather will not inherit anything as long as there is a father because a grandfather is shielded by the father. The grandfather will get 1/6 or 1/6 and asabah or asabah which is the similar to the father.

5. Mother
Gets 1/6 if the deceased has a son, or a daughter to a son or younger, or has a few siblings (male or female); or 1/3 of the total inheritance value if the deceased has no such beneficiaries as mentioned above; or 1/3 balance if the deceased left behind either a husband or a wife and a father without other beneficiaries

6. Grandmother
A grandmother will not receive any portion of the inheritance as long as there is the mother. The grandmother only receives 1/6 be it one person or more.

7. Daughter
Gets 1/2 if there is only one daughter, 2/3 if there are two or more daughters or gets asabah bi al-ghayr5 while being together with the son. A son gets two parts of a daughter’s portion.

8. Daughter to son
Gets 1/2 if one; 2/3 if there are two or more, 1/6 if the daughter is with a female child; gets asabah bi al-ghayr when being with a son to a son or shielded by a son or by two daughters, except when there is a son to a son who also receives asabah bi al-ghayr.

9. Female sibling of the same parents
Gets 1/2 if there is only one; 2/3 if there are two or more; asabah bi al-ghayr while being with a male sibling of the same parents; asabah ma’a al-ghayr 6 while being with a daughter or a daughter to a son or with both; or is shielded by the son or a male grandson or younger.

10. Female sibling of the same father
Gets 1/2 if one; 2/3 if two or more; 1/6 if with a female sibling from the same parents; asabah bi al-ghayr if with a male sibling of the same father; asabah ma’a al-ghayr while with a daughter or a daughter to a son, or with both; or shielded by a son, a grandson, a father, a male sibling of the same parents, two female siblings of the same parents (except when there is a male sibling of the same father) and by a female sibling of the same parents when she is receiving asabah ma’a al-ghayr.

11. Female sibling of the same mother
Gets 1/6 if alone, or 1/3 if two or more; or shielded by male or female descendants, father or grandfather.

12. Male sibling of the same mother
Gets 1/6 if alone or 1/3 if two or more; or shielded by either male or female descendants, father or grandfather. Please note that Son is not part of this classification However, He always gets a share in inheritance (expect any legal impediment blocks him). He gets his share as a Residuary as he is not mentioned in Quran with any fixed share.

Quran did not explicitly spell out the share of the son. Hence, he is primary heir without a fixed share

“Allah commands you as regards your childrens (inheritance); to the male, a portion equal to that of two females; if (there are) only daughters, two or more, their share is two thirds of the inheritance; if only one, her share is half.7” 

Hence, Son minimum share is twice as much as daughters‟. And he also gets remainder of residue after distributing shares.

Only the legitimate son is considered as primary heir Adopted child, foster child etc are all excluded from Mirath (inheritance) in Shariah Adultery and fornication (Zina) is forbidden in Islam, hence, no inheritance is given to illegitimate child. Son always gets his share
as a Residuary. After all the primary heirs with fixed share have been given their allotted share, then the residue is given to the son. If there is a daughter, then son and daughter both shares as Residuary General rule that Male gets twice as female applies. If there is daughter, son gets twice as much share as daughter.

That said, the Holy Quran is very express on what should be given out to who! The Islamic Inheritance Law is a commandment of Allah s.w.t. through the qat’i verses 11, 12 and 176 of al-Nisa. These verses describe the rightful beneficiaries of the inheritance and the portions 7 Al-quran 4:11 which they deserve such as 1/2, 1/4, 1/8, 1/3, 2/3, or 1/6. Such law has been commanded by of Allah s.w.t. solely to provide justice to all mankind.

The basic principles in Shariah law regarding intestate succession are as follows

 The establishment of portions for each beneficiary which means that all fardu and asabah beneficiaries will receive their shares. Shares for the ashab al-furud beneficiaries have been determined by Allah s.w.t. which can be either 1/2, 1/4, 1/8, 2/3, 1/3, or 1/6 as described in the al-Quran

 Members of the comprehensive (syumul) beneficiaries, the beneficiaries who are entitled to receive a portion of the inheritance include all the beneficiaries or relatives, whether big
or small, old or young, rich or poor, even the fetus in the womb of its mother is given the right to inheritance. Similarly, a husband or a wife is entitled to receive the wealth even
though they are not relatives, but they share the sacred relationship of a marriage, the sacrifice, mutual cooperation and loyalty between them.

 Rights of women and children in inheritance and their portions, which means that women’s and children’s rights are guaranteed in the Islamic inheritance. The portions to be rightfully received by women are either 2/3, 1/3, 1/6, 1/2, 1/4 or 1/8. Children receive the same portions of inheritance, whether they are big or small

 Preference to relatives who are closer to the benefactor if there is no specific barrier which may prevent them from receiving the inheritance.

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Mwanga Mastullah Ashah is a Lawyer and a PhD-Human Rights Fellow of Makerere University, Uganda. She is also a Doctoral Fellow of SHUREA-Strengthening Human Rights Research and Education in Sub-Saharan Africa at the University of Pretoria, South Africa

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