Islamic Rules of Intestate Succession

Islamic Rules of Intestate Succession | Overview

Introduction to Succession under Islamic Law
Principles of Intestate Succession
Zav-il-Furuz (Sharers)
The Residuraries or Asabah (agnates)
The Distant Kindred or Zav-il-Arham

The Principles of Intestate Succession comes into place in case a person dies without leaving his will for the distribution of the property owned by him at the time of his death.

Introduction to Succession under Islamic Law

This article aims at analyzing the Islamic Rules of Intestate Succession. Succession in Muslim law may be (1) testate or (2) intestate, depending on whether the deceased died leaving a valid last will or not. The two great sects of Islam are the Sunni and Shiah sects, and the former is divisible into four major sub-sects or madhabs named after the jurists who founded them, namely, the Shaffie, Hanafi, Maliki and Hanbali schools.

The Shiah sect is in turn divided into three major schools, known as Ithna-Ashari, Ismaili (which includes the Dawoodi Bohras) and Zeydi.[1] As far as the difference of religion is concerned, the general rule is that a non-Muslim does not inherit from a Muslim or vice versa.

Illegitimacy can be an important impediment to inheritance. According to the sharia, blood relationship, or nasab, which grounds a right of inheritance, must be a legal relationship, and since there is no legal tie of nasab between a putative father and his illegitimate child, or between their respective ‘legal’ relatives, the root cause simply does not exist. Just as partners in an invalid marriage are not husband and wife, so a person and his illegitimate off-springs are not ‘father’ and ‘child’ for the purpose of inheritance.

Principles of Intestate Succession

The Principles of Intestate Succession comes into place in case a person dies without leaving his will for the distribution of the property owned by him at the time of his death. The heirs according to the Muhammadan Law are divided into three classes. The first class is called the Zav-il-Furuz or the Sharers, the second class is called the Asabah or residuaries or agnates and the third class is called the Zav-il-Arham or the Distant Kindred (uterine relations).

The respective shares of the heirs amongst these three classes are distributed in the following manner:

I. Zav-il-Furuz (Sharers)

The heirs falling under the category of Sharers are entitled to the Quranic Shares in accordance with Holy Quran and the traditions of the Holy Prophet. The first rule of intestate succession is that the Quranic “Sharers” must first (before all others) be assigned their Quranic shares. The Sharers then are the most important class of heirs who take primacy in that they are entitled before all others, the shares allotted to them either by the Holy Quran, or by the traditions.

The list of the Sharers under the Muslim Law of Inheritance is well defined and there will be no difference in it irrespective of the Intestate being a Shaffie, Hanafi, Maliki, Hanbli or a Shiah. However, each school of thought might have slight differences in the application of the rules of inheritance. The number of Sharers (Zav-il-Furuz) is twelve in number. The Share of the Sharers varies depending upon the varying circumstances. Four of the Sharers are males and there are eight females, which clearly explodes the theory advanced by some critics of Islam that our great religion discriminates against women.

The four male sharers are (a) the father; (b) the grandfather or lineal male ascendant (when not excluded); (c) the uterine brothers; and (d) the husband. The eight female sharers are as follows: (a) the widow, (b) daughter, (c) son’s daughter or the daughter of a lineal male descendant how low-so-ever, (d)mother, (e) true grandmother, (f) full sister, (g) consanguine sister, (half-sister on the father’s side), and (h) uterine sisters, (half-sisters on the mother’s side).

The shares of the above-mentioned sharers are explained as follows:

The father – The orthodox lawyers attribute to the father three characters – (a) the character of a simple “Sharer” when the deceased happens to leave a lineal male descendant; (b) the character of a simple residuary when he co-exists with a person who is only a “sharer” – as a husband, a mother or a grand-mother – when he takes the residue of the estate after the allotment of the share or shares; and (c) the character of both a “Sharer” and a residuary, as when he co-exists with a daughter or the daughter of a son or of any other lineal male descendant. In this case, he takes first his share and then becomes entitled to any residue after allotment of the daughter’s or granddaughter’s share. For the sake of simplicity in the latter two cases, he may be said to take simply as a residuary.
The father’s father or any other lineal male ascendant (who is not excluded by the father or a nearer ascendant) takes the same share as the father, viz, 1/6. The Sunnis divide the ascendants for purposes of succession into two classes, viz., true and false. A true grandfather is an ascendant in whose line of relationship to the deceased to female intervenes. For example, a father’s father is a true grandfather; whereas a mother’s father is a false grandfather. A true grandmother is a female ancestor in whose line of relationship with the deceased no false grandfather intervenes; thus a mother’s mother or a father’s mother or father’s father’s mother is a false grandmother. None of these distinctions exists in the Shiah Law.
The uterine brother (when only one, and no child, or the child of a son (1) how low soever, father, or true grandfather), 1/6. When two or more, and no child or the child of a son how low soever, or father or true grandfather, 1/3.
The husband (when the deceased leaves a child or the child of a son, how low soever), 1/4. When the deceased leaves no child or a child of a son, how low soever, the share of the husband is 1/2.
The widow, when the deceased has left no child or the child of a son, how low soever, 1/4. When co-existing with a child or child of a son how low so ever, the widow gets 1/8. In consequence of the limited and qualified recognition of polygamy or more properly speaking, polygyny, by the generality of the schools, it sometimes happens that the deceased leaves him surviving more than one widow. In such circumstance, the widows take the 1/4 or 1/8, as the case may be, between them. A husband or widow co-existing with a daughter’s child, (who is a uterine relation), takes his or her full share.
The daughter, when she has no surviving sisters and has no son, so as to render her a residuary, gets 1/2. Where there are two or more daughters and there is no son, the daughters are entitled to a share of 2/3.
The daughter of a son (or daughter of a son’s son, how low soever), when only one, and there is no child or son’s son or other male descendants, will get 1/2. When two or more and no child or son’s son other lineal male descendants, she will get 2/3. When the daughter of a son co-exists with one daughter and no son or son’s son or other lineal male descendants she will get (2/3 – 1/2) = 1/6. It must be noted that when there are two daughters, the son’s daughters are excluded unless there happen to be with them a lineal male descendant of the same or lower degree. It is also noteworthy that the son’s daughter or the daughters of any lineal male descendant are excluded by a son or by a lineal male descendant nearer in degree than themselves.
The mother, when co-existing with a child of the deceased intestate, or a child of his or her son, how low soever, or two or more brothers and sisters, whether consanguine or uterine, is entitled to a share of 1/6. When none of the above coexists with the mother, the mother’s share would be 1/3. But she is entitled to 1/3 of the remainder, after deducting husband’s or wife’s share, when she is with the father. However, when she is with her grandfather, she will get a share of 1/3 of the whole.
The true grandmother, how high soever (when not excluded by a nearer true female ancestor), gets 1/6. It may be noted that everyone into whose line of relationship to the deceased a mother enters between two fathers is a false grandmother. The mother share of the true grandmother, on the father’s or mother’s side, is a sixth, whether there be one or more.
The full sister is entitled to ½ when only one and there is no son, son’s son how low soever, father, true grandfather, daughter, son’s daughter or brother. However, when there are two or more full sisters and there is no such excluder, the sisters will collectively be entitled to a share of 2/3.
The consanguine sister, when only one and no excluder as above or full sister, gets 1/2 of the estate, but if co-existing with one full sister only 1/6 of the estate. Where there are two or more consanguine sisters, and no such excluder they will collectively get a share of 2/3. When there are two or more full sisters, the consanguine sister takes nothing unless there is a consanguine brother with her.
The uterine sister (when only one, and no child, or the child of a son how low soever, father, or true grandfather), 1/6. When two or more, and no child or the child of a son how low soever, or father or true grandfather, 1/3.

The Sharers take primacy in the allotment of shares. Hence, the first rule of allocation is that the Sharers must be given their shares as specified above.

II. The Residuraries or Asabah (agnates)

In case any balance is left after distributing the property of the deceased among the Sharers, the residue of the property shall be distributed amongst the heirs falling under this category namely the Asabah or Agnates. The heirs falling under this category are commonly known as the Residuaries because they take the residue of the property of the deceased person. The Residuaries can further be divided into two groups which are asabah by nasab or kinship to the deceased, and asabah by sabah or the special cause of wala.[2]

The heirs falling under asabah can further be divided into three categories which are:

Residuaries in their own right;
Residuaries in another’s right; and
Residuaries together with another.

Residuaries in their own right can again be divided into 4 sub-categories:

The “offspring” of the deceased, meaning thereby the deceased’s sons or lineal male descendants;
His “root”, i. e., the ascendants; in other words, his father and true grand-father, how high soever;
The “offspring” of his father, viz., full brothers and consanguine brothers and their lineal male descendants; and
The “offspring” of the true grand-father how high soever; in other words, lineal male descendants, however remote of lineal male ascendants however removed.

Residuaries in another’s right are those females who become residuaries only when they co-exist with certain males, that is, when there happen to be males of the same degree, or who though of a lower degree, would take as such. These are as follows:

Daughters (with sons);
Son’s daughters (with a son’s son or a male descendant still further removed in the direct line)
The full sister (with her own or full brother).
The sister by the same father, or, in other words, a consanguine sister (with her brother).

Residuaries together with another are as follows:

Full sisters, with daughters or son’s daughters
Consanguine sisters, with daughters or son’s daughters.

III. The Distant Kindred or Zav-il-Arham

Zav-il-Arham, which means “uterine relations” constitute the third major class of heirs, who simply are distant kindred.

The heirs falling under The Distant Kindred or Zav-il-Arham can further be divided into four categories. These are as follows:

1. The “offspring” of the deceased:

The children of daughters and their descendants how low so ever.
The children of son’s daughters and their descendants how low so ever.

2. The “root” of the deceased or his ascendants: (a) Male ancestors however remote in whose line of relation to the deceased there occurs a female and who are therefore called “false grand-fathers;” (1) e. g., mother’s father’s mother.

3. The “offspring” of his parents:

The daughters of full brothers and of full brother’s sons, and their descendants.
The daughters of consanguine brothers (i.e., by the same father only) and of consanguine brother’s sons and their descendants.
The children of half brothers by the same mother only and heir descendants.
The children of all sisters and their descendants.

4. The offspring of grandparents and other ascendants however removed:

The offspring of grandparents and other ascendants however removed
The daughters of half paternal uncles by the father (i.e. father’s consanguine brothers) and of their sons
Paternal aunts, full consanguine or uterine and their children
Maternal uncles and aunts and their children
Paternal uncles by the mother that, is, the father’s half brothers by the same mother only and their children and their respective descendants however removed.

[1] Saleem Marsoof P.C, Judge of the Supreme Court of Sri Lanka (1970) ‘SUCCESSION UNDER MUSLIM LAW’, Academia.edu.

[2] Dr Akmal Hidayah Halim (2015) ‘Islamic Law of Succession’, DEPARTMENT OF LEGAL PRACTICE AIKOL, IIUM.