The Laws of Inheritance
Source: Al-Nass Wal-Ijtihad, Text and Interpretation
By: Allama Abdul Husayn Sharafuddin al-Musawi
Bequeathing between brothers and sisters
Allah has said: “They ask you for a decision of the law. Say: Allah gives you a decision concerning the person who has neither parents nor offspring; if a man dies (and) he has no son and he has a sister, she shall have half of what he leaves, and he shall be her heir she has no son; but if there be two (sisters), they shall have two-thirds of what he leaves; and if there are brethren, men and women, then the male shall have the like of the portion of two females; Allah makes clear to you, lest you err; and Allah knows all things” (Qur’an 4:176).
The verse is clear in concerning the obligation of bequeathing between brothers and sisters if the bequeather has no children. The word “son” here refers to the boy and the girl all the same. 123
But Umar bin al-Khattab interpreted the word “son” mentioned in the verse to mean the male offspring only and so he equalled in inheritance between the daughter of a bequeather (a dead man) and his full sister; therefore he gave each of them a half of the inheritance. Then all the four Sunni sects followed him in this concern.
As for the infallible imams of Ahlul Bayt (as) and their followers, they have agreed unanimously on that the brothers and sisters and other relatives of a bequeather would have no right in the inheritance if the bequeather had a child whether it was a boy or a girl and whether it was one child or more. Their evidence was the saying of Allah: “..and those who are akin are nearer one to another in the ordinance of Allah” (Qur’an 33:6)
They are too strict in depriving the other relatives of the inheritance if the bequeather has children even if it is one daughter. He, who wants to know more about the traditions of the Shia about the subject of inheritance, can refer to Wasa’il ash-Shia ila Ahkam ash-Shari’ah and the other Shiite books of Hadith.
Once Ibn Abbas was asked about a man who had died and left a daughter and a full sister. He said: “The sister has no right to take anything from the inheritance and the daughter takes a half of the inheritance as her obligatory right and the other half belongs to her because she is the nearest relative to the dead man.” The asker said to Ibn Abbas: “But Umar has judged something else!” Ibn Abbas said: “Are you more aware than Allah?”
The asker said: “I could not be certain of that until I asked Ibn Tawoos and mentioned to him what Ibn Abbas had said. Ibn Tawoos said to me: “My father told me that he had heard Ibn Abbas saying: “Allah has said: “..if a man dies (and) he has no son and he has a sister, she shall have half of what he leaves…” (Qur’an 4:176)
but you say: she shall have half of what he leaves even if he has a son (child).” 124
Shortage of inheritance
The Muslims have disagreed about the permissibility of shortage of inheritance. Shortage of inheritance is that inheritance becomes less than the shares of the heirs. For example when the heirs are two sisters and a husband; each sister should get a third of the inheritance and the husband should get a half of it.
The matter was ambiguous for the second caliph Umar. He did not know which of them Allah had given priority to the other so that he would give him/her priority and so he determined to distribute the shortage among the all according to the proportion of their shares and this was the utmost result he could reach to achieve justice when the matter became ambiguous to him.
But the infallible imams and the ulama of Ahlul Bayt (as) have known the prior and the later in this matter (and the people of a house are more aware of what there is in it).
Imam Abu Ja’far al-Baqir (S) has said: “Ameerul Mo'mineen ‘Ali (as) said: “He (Allah), Who has counted the grains of the sand of Aalige, knows that the shares (of inheritance) do not exceed six 125 if they (people) know the ways of their solution.”
Ibn Abbas often said: “Whoever likes I will challenge him before Allah near the Black Rock (in the Kaaba). Allah has never mentioned in His Book two halves and a third.” He also said: “Glory be to Allah, the Almighty! Do you think that He, Who has counted the sand of Aalige, has made in an inheritance a half and a half and a third? These two halves cover all the inheritance so where will the third be?”
It was said to him: “O Ibn Abbas, then who was the first one who had lessened (changed) the shares?” He said: “When the shares of inheritance became confused to Umar and they conflicted with each other, he said: “By Allah, I do not know which of you Allah has given priority and which of you He has made later! I cannot but to distribute the inheritance equally among you.”
Ibn Abbas said: “By Allah, if you give priority (in distributing inheritance) to those, whom Allah has given priority and you delay those, whom Allah has delayed, no share of inheritance will be lessened.” It was said to him: “Which one Allah has given priority and which one He has delayed?”
He said: “Every share Allah has not replaced except with another obligatory share (to the same heir) is the one that He has given priority and every share that may be omitted if being conflicted with others is the one that Allah has delayed. Allah has given priority to the husband (of the (dead) bequeather) who should have a half of the inheritance but if another share conflicts with his, he should have a quarter. The same is said about the wife and the mother.
But as for the shares that He has delayed they are the shares of the daughters and sisters who should have a half and two thirds but if there are other shares that conflict with theirs, they should get the remainder of the inheritance. If what Allah has given priority and what He has made later (of the shares) gathered together, those, which Allah has given priority, should be given first and if something of the inheritance remains, it should be given to the heirs, whom Allah has made later.” This tradition has been mentioned by the Second Martyr in his book ar-Rawdha.
Al-Hakim has mentioned in his Mustadrak 126 that Ibn Abbas had said: “The first one, who had lessened the shares (of inheritance), was Umar. By Allah, if he has given priority (in distributing the shares of inheritance) to those, which Allah has given priority and he has delayed those, which Allah has delayed, no share would be lessened.” It was said to him: “Which of them Allah has given priority and which of them He has delayed?”
He said: “Each share that Allah has not replaced except with another obligatory share (to the same heir) is the one that Allah has given priority like the shares of a husband, a wife and a mother and every share that is omitted if being conflicted with others is the one that Allah has delayed like the shares of sisters and daughters who should have the remainder of the inheritance. If what Allah has given priority and what He has delayed gather together, the prior heirs should be given their shares first and the remainder of the inheritance should be given to the others…” 127
Hence if a husband, a mother and daughters are the heirs, the husband and the mother should be given their second (replaced) shares; a quarter of the inheritance for the husband, a sixth for the mother and the remainder of the inheritance should be divided equally between the two daughters.
If there are sisters among these heirs, they will not deserve anything of the inheritance at all because the ranks of heirs due to kinship according to the belief of the infallible imams of Ahlul Bayt (as) and their followers are three; the first rank includes a father and a mother (without their fathers and mothers), sons and daughters, the second rank includes brothers, sisters, grandfathers and grandmothers and the second rank includes uncles and aunts (both father and mother’s brothers and sisters).
No one from the second rank inherits the bequeather if there is an heir from the first rank and so on.
“…and the possessors of relationships are nearer to each other in the ordinance of Allah” (Qur’an 33:6).
This is the belief of the infallible imams of Ahlul Bayt (as), whom Allah and His Messenger have made as equal as the Book until the Day of Resurrection, and this is the belief of all of the Shia. Two sisters from the second rank will not inherit the bequeather if his mother is alive and Allah, the Almighty, is more aware!
Inheritance of grandfather when there are brothers
Al-Bayhaqi mentioned in his Sunan and in Shu’abul Eeman 128 that Umar had asked the Prophet (S) about the inheritance of a grandfather when there were other brothers and the Prophet (S) had said to him: “O Umar, why do you ask about this? I think that you will die before you will have understood this matter.” The narrator of this tradition, Sa’eed bin al-Musayyab, said: “Umar died before understanding this matter.”
Umar has been confused in this matter throughout his rule that he has given seventy different judgments on it. Ubayda as-Salmani said: “I have written down one hundred different judgments determined by Umar on the matter of the inheritance of grandfather.” 129 Umar himself said: “I have decided on the matter of grandfather’s inheritance many judgments that I might have deviated from the truth.” 130 At last Umar referred to Zayd bin Thabit in this matter.
Tariq bin Shihab az-Zuhri said: “Umar bin al-Khattab has decided on the matter of the inheritance of grandfather when there were other brothers with him different judgments and then he gathered the companions and brought a tablet to write on it. They thought that he would make the grandfather (mentioned in the verse) as a father 131 but at this time a snake appeared and they separated. Then Umar said: “If Allah has willed to fix it, he would have done so.”
Then Umar went to Zayd bin Thabit in his house and said to him: “I have come to you about the matter of the grandfather and I want to make him as a father.” Zayd said to him: “I do not agree with you to make him as a father.” Umar became very angry and went away. Later on he sent for Zayd. Zayd wrote down his opinion about the matter on a tablet and sent it to Umar. When it reached Umar, he made a speech before the people and read for them what Zayd had written on the tablet and said: “Zayd has given his opinion about the matter of grandfather and I have approved it.” 132
The case was that a woman had died and left a husband, a mother, two brothers from her mother but not her father and two other brothers from her mother and father at the reign of the second caliph Umar. This case was offered twice before the caliph. In the first time he judged to give the dead woman’s husband his share, which was the half of the inheritance, to give her mother her share, which was a sixth, to give her two brothers from her mother the third; sixth to each of them and he excluded her two full brothers.
In the second time Umar wanted to decide the same judgment but one of the dead women’s full brothers said to him: “Suppose our father is a donkey, then you are to join us with our brothers due to our relation to our mother.” And then he distributed the third of the inheritance among the four brothers equally. A man said to Umar: “You have not done so in that year!” Umar said: “That case was as we have judged then and this one is as we judge now.” 133
This case has been called as “al-Himariya” because one of the brothers has said to Umar: “Suppose that our father is a donkey (himar)…” It might also been called as al-Hajariyya or al-Yammiyya because it has been narrated that one of the brothers has said to Umar: “Suppose that our father is a rock (hajar) thrown in the sea (yamm).” Also it might be called as “al-Umariyya” because Umar has had two different judgments on it. It has also been called as “common inheritance”. 134
It was one of the famous cases among the jurisprudents of the four Sunni sects although they have disagreed among them about it; Abu Haneefa and his two companions, Ahmad bin Hanbal, Zafar, and Ibn Abu Layla thought that the two full brothers had had no right of their mother inheritance as Umar had decided in the first time while Malik and ash-Shafi’iy thought that the two full brothers had the right to participate with their other two brothers in the third of their mother’s inheritance as Umar had decided in the second time.
As for the infallible imams of Ahlul Bayt (as) and their Shia, they have divided the heirs according to their relationship into three orderly classes. No one of the next class would inherit if someone of the previous class was available at all. Mother, according to the Shia, is from the first class unlike brothers and sisters, who are from the second class. This has been detailed full in the jurisprudence of the Shia.
According to this principle, the judgment on this case would be as the following; the husband would get half of the inheritance as his due right and the rest would be for the mother of the dead woman; some of it as her due right and the other would belong to her because she was the nearest relative (first class) to the dead. No one of the brothers and sisters would get anything of the inheritance since their sister’s mother was alive.
The share of the heirs
Allah has said: “Men shall have a portion of what the parents and the near relatives leave, and women shall have a portion of what the parents and the near relatives leave, whether there is little or much of it; a stated portion” (Qur’an 4:7) and: “Allah enjoins you concerning your children: The male shall have the equal of the portion of two females (Qur’an 4:11).
All the verses of bequeathing and inheriting are in the same way of being general. They are mentioned in Sura of an-Nisa’ (4). So are the true traditions and the consensus of the umma concerning this subject.
Imam Abu Abdullah Ja’far as-Sadiq (S) has said: “Islam is to witness that there is no god but Allah and that Muhammad is the Messenger of Allah, with which the bloods (of the Muslims) are spared and according to which marriages and inheriting are managed.”
Imam Abu Ja’far Muhammad al-Baqir (S) has said: “Islam is as it appears via sayings and doings. It is that on which the groups of people of all the Islamic sects. It is that with which the bloods are spared, according to which marriages and inheriting are managed and with which people have gathered together on prayers, zakat, fasting Ramadan and offering the hajj. With it all these people have got out of unbelief and entered into faith.”
But Malik bin Anas has mentioned in his Muwatta’ that Sa’eed bin al-Musayyab had said: “Umar bin al-Khattab refused to give the non-Arabs 135 their inheritances except one who was born from Arab parents.” Malik added: “If a pregnant woman comes from the land of the enemy and gives birth to her child in the land of the Arabs, then her child will inherit her when she dies and she will inherit her child when he dies according to the Book of Allah.” 136
Uncle’s inheritance from his sister’s son
Sa’eed bin Mansoor mentioned in his Sunan: “Once a man recognized his sister, who had been taken captive in the pre-Islamic period. He found her with a son but he had not known who the father of the son was. He bought them both and set them free (for they were as slaves). The son (when he grew up) gained some wealth and then he died. The uncle came to Ibn Mas’ood and told him the matter.
Ibn Mas’ood asked him to go to Umar and then to come back to tell him what Umar would say. He went to Umar and told him his matter. Umar said to him: “He (the nephew) is not your relative and he is not included in the verdicts of inheritance.” Umar refused to let the man inherit his nephew. The uncle went back to Ibn Mas’ood and told him what Umar had said. Ibn Mas’ood came with the man to Umar and said to him: “How did you give this fatwa to this man?”
Umar said: “I have not found him as one of his blood relations nor has he been among those who have deserved inheritance; therefore I have not permitted him to inherit that young man. What do you think, O Abu Abdullah?” Ibn Mas’ood said: “I see him as a kin (for being his uncle) and a benefactor (for he has set his nephew free from being as a slave) and so I see that he has the right to inherit his nephew.” And then Umar annulled his first judgment and permitted the man to inherit his nephew.”
This event has been mentioned by al-Muttaqi al-Hindi in his Kanzol Ummal, vol. 6 p.8. This fatwa would have been true if the mother had died before her son.
123. The lexicons of the Arabic language prove this matter clearly. Allah says: “Allah enjoins you concerning your (sons) children: The male shall have the equal of the portion of two females” (4:11). When an Arab man begets a girl he may say: By Allah, it is not a good son! In Arabic “son” refers to either a boy or a girl.
124. Mustadrak of al-Hakim, vol.4 p.339 and it has been mentioned by many other scholars of Hadith.
125. People at the time of Imam ‘Ali (as) usually supposed everything to be of six parts as people nowadays suppose twenty-four carats. Imam ‘Ali (as) wanted to say: would that you know the solutions of the shares when they conflict with each other! They do not exceed six shares. Since you do not perceive the ways of (distributing) the six shares, you add to the six inasmuch as the shortage. For example if the heirs are two parents, two daughters and a husband, the parents have two shares of the six, the two daughters have four (and so the six shares are complete) and then you add one and a half to the husband and so the shares exceed the six and become seven and a half shares and this is impossible to be imposed by Allah at all.
126. Vol.4 p.340.
127. Al-Hakim said, after mentioning this tradition: “This is a true tradition according to the conditions of Muslim but they (al-Bukhari and Muslim) did not mention it in their Sahihs.” Ath-Thahabi has mentioned it confessing its truthfulness. We have accurate researches on this subject in our book The Answers of Musa Jarullah, let them be referred to.
128. And mentioned by al-Muttaqi al-Hindi in Kanzol Ummal, vol. 6 p.15.
129. Mentioned by Ibn Shayba and al-Bayhaqi in their Sunan and Ibn Sa’d in his Tabaqat and al-Muttaqi al-Hindi in Kanzol Ummal, vol. 6 p.15.
130. Kanzol Ummal, vol. 6 p.15 from al-Bayhaqi in Shu’ab al-Eeman.
131. It means to be treated as a father concerning the matter of inheritance.
132. Hayat al-Haywan (animal life) by ad-Dimyari, chap. (Hayya-snake). He, who wants to see the confusion of Umar in this matter, can refer to the books of Hadith, the matter of inheritance. For example, let refer to Kanzol Ummal and Mustadrak of al-Hakim when talking about inheritance.
133. Mentioned by al-Bayhaqi and Ibn Abu Shayba in their Sunan and by Abdurrazaq in his Jami’ as in Kanzol Ummal, vol. 6 p.7, and mentioned by ash-Sharqawi in his Hashiya printed with al-Tahreer by Sheikh Zakariyya al-Ansari. The author of Majma’ al-Anhur fee Sharh Multaqa al-Abhur said: “Firstly Umar believed in not participating all the brothers in the inheritance of their mother and then he changed his mind. The reason behind changing his mind was that he had been asked about the case and he answered according to his own opinion concerning the matter of inheritance and then one of the full brothers said to him: “O Ameerul Mo’mineen, if we suppose that our father is a donkey, are we not from one mother?” Umar pondered a little and then he said: “You are right. You all are from one mother.” Then he spread the third of the inheritance among all of them.” This event has been mentioned in this way by Ahmad Ameen in his book Fajr al-Islam, p.285.
134. For more details refer to Taj al-Aroos by al-Wasiti.
135. Refusing to give the non-Arabs their inheritance might be because that it had not been proved to Umar that those people were legal heirs or that the dead was a Muslim and the heirs were unbelievers or that it had not been proved to Umar that they were among the relatives of the dead who would have deserved to inherit him. Allah is more aware!
136. Muwatta’ of Malik, vol.2 p.11.