Estate Share of a Predeceased Child & Per Stirpes Clause

Nasihah (Advice): Beware of oppressing one’s heirs

Rasulullah sallahu alaihi wa sallam said, “Sometimes a man and a woman live in the obedience of Allah for sixty years then before they die they cause such harm in their bequests that Jahannam becomes warranted for them.” [I.e. they cause harm to the heirs by either bequeathing more than one third, or they choose to gift all of their wealth to one heir so as to deprive the other heirs etc.] [Sunan Tirmidhi]

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 Question and Answer:

1. I have a question about Islamic inheritance law. Specifically, I would like clarification on the rights of a son who predeceased his mother. In such a case, does he lose his rights to his mother’s estate, or should his share be given to his surviving heirs?

1. A predeceased relative does not qualify as an heir.

In the case of a son predeceasing the mother, the mother is an heir in her son’s estate and it is therefore not possible for the son to be her heir as well. The same rule applies to all relatives. (Hindiyyah 6: 447)

In some wills, provision is made for the offspring of the predeceased children. Such a provision falls under Wasiyyah (bequests) and is valid for up to one-third of the estate. Only in this case would the offspring of the predeceased children benefit from the estate.

And Allah Ta’ala Knows Best

Per Stirpes Clause

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Question and Answer:

1. The Jamiat had previously sent out a Q&A titled: “Estate Share of a Predeceased Child” in which the Islamic rule was given that the children of predeceased children do not qualify as heirs and that any benefit to them will have to be stipulated as wasiyyah.

Can a parent state in their will that if a child or children passes away before them, the grandchildren can be bequeathed up to a third that is to be shared amongst them all?

1. Yes, such a bequest is permissible and valid.

It is considered Mustahab and recommended to make a bequest in favour of the children of one’s predeceased children. (Al-Fiqhul Islami 10: 7563)

From a legal viewpoint, a per stirpes clause in a will typically ensures that if a beneficiary predeceases the testator (the person making the will), the deceased beneficiary’s share (had they been living) will pass to their descendants (usually children) instead of being distributed among the surviving beneficiaries.

Here is an example of how a per stirpes clause may be worded:

“I direct that if any of my children predecease me, the share or shares to which such child would have been entitled if living shall be divided equally among such deceased child’s children, per stirpes, provided that this benefit is restricted to 1/3 of the nett estate allowed for bequests as per Islamic law.”

N.B. We advise consulting with a legal expert when drafting one’s will.

And Allah Ta’ala Knows Best

Mufti Moosa Salie

Mufti Taahir Hansa

(The answer hereby given is specifically based on the question asked and should be read together with the question asked. Islamic rulings on this Q&A newsletter are answered in accordance to the Hanafi Fiqh unless otherwise stated.) 

Fatwa Department
Jamiatul Ulama (KZN) 
Council of Muslim Theologians
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Email: fatwa@jamiat.org.za
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