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Inheritance Q&A Part 1

Nasihah (Advice): Do not deprive yourself of your inheritance in Paradise

Sayyiduna Anas Bin Maalik Radiyallahu Anhu reports that Rasulullah Sallallahu Alayhi Wasallam said,“Whoever attempts to dent the inheritance due to his heirs, Allah will deprive him of his inheritance in Paradise on the Day of Resurrection.” (Ibn Majah)

1.Paying creditors with a share of one’s expected inheritance

QI will be an heir and own a share in my father’s property. Can I give my share to my creditor to pay off my debts that I owe him whilst my father is still living?

 

(Question published as received)

A. Being a potential heir in a share of a property does not make one a shareholder in the property as one does not own it. More so, heirs are only determined after the demise of the deceased.

As such, you cannot pay your creditor by giving your potential share of your father’s property to him whilst your father is still alive.

 

2.Does a separated wife inherit from her husband?

Question:

My father has two wives. He has separated form his second wife and his children from his second wife. If my father passes away, does his second wife and her children from him inherit from my father?

 (Question published as received)

 Answer: As long as a husband is married to his wife/wives i.e. they were not divorced from him when he passed away, all his wives will inherit from him upon his demise, irrespective if he had separated from them during his lifetime.

As for his children, all of them will inherit from him even if he had divorced any of his wives.

3. In South Africa, can a Muslim inherit or accept a bequest from a non-Muslim?

 (Question published as received)

 Answer:

In principle, if a non-Muslim passes away and is survived by Muslims heirs, it will not be permissible for the deceased’s (non-Muslim) Muslim heirs to inherit from his/her estate. This ruling is applicable to an Islamic State.

In a secular state, like South Africa, the above ruling does not apply. Hence, if a non-Muslim passes away and is survived by Muslims heirs, it will be permissible for the deceased’s Muslim heirs to inherit from his/her estate.

In the case of a non-Muslim bequeathing from his/her estate to his/her Muslim heirs or any Muslim, it will be permissible for Muslim heirs or Muslims to accept a non-Muslims bequest without any limitation to the value of one third of the estate. A Muslim can accept a bequest from a non-Muslim over and above the one-third value of the estate.

Note: The above ruling is primarily based on the premise that Islamic Laws are not binding on non-Muslims in a non-Muslim/secular state. (Shaami 6/655/Imadaadul Ahkaam 4/627-628)

In terms of non-Muslims inheriting from Muslims or Muslims making bequests in favour of non-Muslims, it is binding upon Muslims to adhere to the Islamic Laws and Principles of Shariah. Therefore, a Muslim cannot make a non-Muslim an heir and neither can a Muslim bequeath more than one third of his/her estate to a non-Muslim. Bequests up to the value of one third of the estate are permitted.

It is necessary (Waajib) upon Muslims living in non-Muslim/secular states to sign an Islamic-compliant Will ensuring that the distribution of their estates are according to the Islamic Laws of Succession and Inheritance.

4. Inheritance of an adopted child

Q.  As salaamualaikum, I am an adopted child, I grew up learning that adopted children do no inherit after the demise of the parents who adopted them. I was recently told something else which brings me to my question below.
Question: If a couple has no children of their own and adopts children, is it true that those children would inherit upon the demise of the parents who adpopted them as if they were the parent’s biological children? 
And if parents have their own children and choose to adopt still then those children who were adopted do NOT inherit from the parents who adopted them?
Please clarify the fatwa on inheritance of adopted children relating to the question above.
(Question published as received)
A. An adopted child does not inherit a fix share of inheritance from his/her adoptive parents irrespective if their adoptive parents have biological children or not. However, the adoptive parents are entitled to make a bequest up to one third of their estate to their adopted child/ren after their demise or gift to him/her whatever they wish during their lifetime.
The absence or presence of biological children does not hold any bearing of entitlement to a fix share of inheritance for an adopted child.

5. Inheritance of Wife

I would like to know what my wife would inherit if I pass away first.My wife is a revert to Islam…her family is Christian.We do not have any children and my parents have passed away.I have 2 brothers, 1 nephew and 4 nieces.

My wife’s parents are still alive, she has 2 brothers, 1 sister, 3 nephews and 2 nieces…they are all Christian.We both work and we have a joint bank account and share all expenses which I manage.  She earns 50% more than I do (i.e. She earns $120,000/year and I earn $80,000/year).

Would my wife be entitled to 60% of our assets first since she accounts for 60% of our household income?  And then she would be inherit 50% of my assets…is this correct?  The remaining 50% of my assets would go to my family and nothing to her family since they are Christian.

For example, if I pass away first and we have exactly $1,000,000.  My wife would first get $600,000 which would be her share/asset.  Then $200,000 (which is 50% of my assets)…my family would get and share the other 50% ($200,000) share of my assets and distribute amongst themselves according to Sharia.

Please advise…Jzk

(Question posted as received)

Answer

If in the eventuality of your demise, you are survived by the following heirs:

  • Wife
  • Brother
  • Brother

Your estate will be divided as follows:

 

 

Beneficiaries Shares Percentage
Wife 2 (one fourth) 25%
Brother 3 (three eighth) 37.5%
Brother 3 (three eighth) 37.5%
3 Heirs Total: 8 Shares 100%

Your nephew and nieces will not inherit in this case.

In principle, whatever is owned by you will form part of your estate. Whatever is owned by your wife will form part of her estate.

The term whatever includes every single item of possession from part to property.

If both of you have a joint account and if she owns 60% of the finances as explained by you and you own 40%, then her money will belong to her. She will inherit 25% of your estate, not 50% as you state. i.e. in the example cited, she will get $100,000, the remaining will be divided equally between both the brothers at $150,000 each.

الساجي في الميراث (فصل في الموانع ص11-12)

و اختلاف الدينين

فتاوي حقانية 6/522

احسن الفتاوى

And Allah Ta’ala Knows Best

Mufti Ebrahim Desai
(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.) 

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