Exclusion

Exclusion means preventing a rightful heir from having any share of the deceased’s estate due to the PRESENCE of another heir. The principle behind who excludes who is the degree of closeness to the deceased. The closer relatives will exclude those who are not so close. For example, son will exclude grandson. A grandson can only inherit in the absence of a son since the latter is closer to the deceased than the former. Note that there is a difference between exclusion and impediments to inheritance. In exclusion, a “stronger” heir eliminates a “weaker” heir while impediment has to do with preventing an heir from inheriting due to circumstances like murder, difference of religion, slavery, etc.

There are two types of exclusion: total and partial. The definition above refers to total exclusion. Partial exclusion means reducing the share of the estate an heir should have gotten due to the existence of another heir. For instance, a husband inherits half (½) of his wife’s estate if she has no child, but supposing she has a child even if from a previous husband, he gets one-quarter (¼) of her estate. This reduction from ½ to ¼ is called partial exclusion. Meanwhile, we intend to concentrate on total exclusion. So, unless otherwise specified, whenever we say “exclusion,” we mean “total exclusion.”

Now, among the heirs (male and female), there are those I call “basic heirs,” because they cannot be excluded irrespective of who is present. They are: son, daughter, father, mother, husband and wife. The worst that can happen to them is to be partially excluded. Exclusion is quite a complex concept. Thus, we will try to simplify it using analogies. Do not mind any repetitions. They are for easier and clearer understanding.

Let’s say that an individual ‘X’ (who may either be a male or female) has two sons ‘A’ and ‘B’. ‘A’ has 2 sons and a daughter while ‘B’ has a son and 3 daughters. This means that ‘X’ has 7 grandchildren (3 sons, 4 daughters).

a) If ‘A’ and ‘B’ are absent (i.e. have died), when ‘X’ eventually passes on, the 7 grandchildren will replace or represent their fathers and inherit from his estate.

b) Supposing ‘A’ and ‘B’ are both present at the time ‘X’ dies, they will exclude their children from having any share of ‘X’s’ inheritance.

c) If at the time ‘X’ passes on, only ‘A’ is present, (i.e. ‘B’ has died before ‘X’), the 4 children of ‘B’ cannot take the place of their father to inherit from ‘X’ due to the presence of ‘A’. This means that ‘A’ will exclude both his children and the children of his brother ‘B’. But this rule applies exclusively when ‘A’ is a SON and not a daughter. Therefore,

Rule 1: A son excludes ALL grandchildren.

Modifying the analogy a bit, if ‘A’ were to be a daughter and ‘B’ a son, what happens?

a) Assuming ‘A’ and ‘B’ are both absent when ‘X’ dies, only the 4 children of ‘B’ will inherit from him. The children of daughter ‘A’ are non-heirs.

b) If ‘A’ and ‘B’ are present at the time ‘X’ passes on, they will exclude the children of ‘B’.

c) On the other hand, if ‘B’ died before ‘X’, and ‘A’ is the only surviving child, she will NOT exclude the children of ‘B’. However, this does not mean that ‘B’s’ children will take the place of their father or will be entitled to their father’s share of the estate. A new sharing formula is to be created for them [We shall see the details of this sharing formula with numeric examples Insha Allah. Here we are just interested in discussing who excludes who and in what circumstance(s)]. This brings us to the next rule of exclusion.

Rule 2: A daughter does not exclude grandchildren [i.e. children of her late brother(s)].

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Your Questions, Our Answers

We have received a number of emails from those who visited this website or downloaded and read INHERITANCE IN ISLAM. Almost all of them were questions on either aspects of inheritance not covered in the book or clarifications needed regarding specific cases. Hence, we thought it wise to reproduce the emails so that others may benefit as well. As always, we welcome suggestions, criticisms and of course, more questions!

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