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Inheritance Q&A Part 2

1. Talaaq & Inheritance

Q:In the old days, the men would divorce their wives before they passed away. Upon their deaths, the divorced wives would not receive anything from the dead husband’s estate. They would say that the husband divorced her before he passed away and that is why she does not inherit. Was this correct?

(Question published as received)

 A:If a husband has issued a Talaaq-e-Rajee (revocable divorce) to his wife and he passes away during her Iddah period, the divorced wife will be entitled to inherit a wife’s share from the deceased husband’s estate. In this case, if the divorced wife’s Iddah period terminates, she will not be entitled to inherit from the deceased husband’s estate.

On the other hand, if a husband issued a Talaaq-e-Baain (irrevocable divorce) to his wife and he passes away during her Iddah period, the divorced wife will not be entitled to inherit from the deceased husband’s estate, before or after the termination of her Iddah period.

In either of the above cases, (whether the husband issued a revocable or irrevocable divorce) and the husband passed away during her Iddah period due to suffering from a terminal illness, for e.g. cancer from which he was housebound and he had never recovered, the divorced wife will be entitled to inherit a wife’s shares from the deceased husbands estate. (Tabyeenul Haqaaiq 2/245/246)

Note: You may refer to the following link on the explanation of the different types of Talaaq for further information:

https://jamiat.org.za/talaaq-divorce-explained/

2. Does a wife still inherit if she remarries?

 Q: If a wife remarries after the death of her husband and the estate of her husband was not distributed to her, is she still entitled to it? Or she does not qualify for it because she remarried another husband?

 A: At the time of the death of a deceased person, all the heirs of a deceased person are entitled to their share of inheritance from the deceased’s estate, irrespective if the heirs remarry. As such, if a husband is deceased and his wife did not receive her share of inheritance from his estate, she will still be entitled to her share of inheritance from her deceased husband’s estate even though she remarried after his demise. (Ahsanul Fataawa 9/302)

3. Does a spouse inherit if the marriage is not consummated?

Q:Does a woman inherit from her husband if her husband passes away before consummating the marriage?

 A: After the performance of Nikah between husband and wife, the consummation of the Nikah is not necessary for the wife or husband to be entitled to inherit from each other’s estate. The performance of Nikah is sufficient for husband and wife to inherit from each other’s estate.

 Accordingly, if husband and wife were married in Nikah and irrespective if the Nikah was consummated or not, the husband or wife will be entitled to the inheritance of their respective spouse in the event of death. (Shaami 6/762)

4. Inheritance of an unborn child

Q: My husband passed away and I am pregnant. Does my unborn child inherit from my husband’s estate?

 A: The unborn child is entitled to his/her share of inheritance from the estate of his/her deceased father. As such, in this case, the estate of the deceased should be distributed after the child is born in order to ascertain the gender of the child and to distribute his/her share of inheritance accordingly. (Al-Lubaab 4/199)

5.Asking heirs to forfeit their inheritance

Q.My uncle has given his sons and daughters properties a few years ago as gifts in his lifetime. Now he is asking them not to claim from his  inheritance when he passes away  because he  has already given them their  inheritance and the children must leave the entire estate to his wife. Is this correct?

(Query published as received)

 A: As you have stated, the properties that your uncle had given to his children in his lifetime are gifts and belong to them. These properties will not form part of your uncle’s estate upon his demise. Whatever your uncle owns at the time of his demise will form part of his estate and has to be distributed according to the Islamic Law of Succession and Inheritance amongst all his rightful heirs.

It is not correct for him to instruct his children to forfeit their inheritance on account of him giving them certain assets in his lifetime. The properties that he has given them in his lifetime are not inheritance. These are gifts. Inheritance only comes into effect after a person passes away. The children of your uncle are legitimate Shar’ee heirs and have the full right to claim their shares of inheritance upon his demise.

Yes, if after the demise of their father, the children wish to cede their shares to their mother without any coercion, they may do so. Alternately, your uncle may gift whatever assets he wishes to his wife in his lifetime as he has gifted his children.

6. Does the time of burial affect inheritance

Nasihah (Advice): A murderer does not inherit

Rasulullah Sallallahu Alayhi Wa Sallam said: “A murderer does not inherit (from the estate of his victim)” (Ibn Maajah)

Note: If a murderer had killed a person from whom he would have inherited (for eg. A son kills his father), then he will not receive any share from the victim’s estate.

 

Q: My mother is living in the UK and my sister is living in South Africa. My mother passed away in the UK and she was buried after three days. Unfortunately, my sister passed away one day after my mother passed away but she was buried on the same day. She was buried two days before my mother was buried. Who inherits from who as the burial times were different?

 A:In the enquired case, since your mother passed away first and subsequently your sister passed away thereafter, you sister will inherit from your mother and not vice versa even though your mother was buried after your sister’s burial. The Islamic Laws of Succession and Inheritance revolves around the time of the death of a person and not at the time of a burial of a person.

You may contact the Fatwa Department for a detailed distribution of the respective estates.

And Allah Ta’ala Knows Best

Fatwa Department
Jamiatul Ulama (KZN) 

Council of Muslim Theologians
223 Alpine Road, Overport

Durban, South Africa
Tel : +27 (0) 31 2077099
Fax : +27(0) 31 2074163
Website : www.jamiat.org.za

fatwa@jamiat.org.za

 

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