Inheritance of children

In Islam, there are three categories of children: legal, biological and those that are both legal and biological. By legal, we mean children that result from a marriage approved by the Shari’ah. Thus for a man, only his children that are both legal and biological are considered his children and by extension, his heirs; while for a woman, the simple act of giving birth to a child (biological) makes them (mother and child) rightful heirs of one another. A few illustrations will elucidate this.

a) The Muslim children of a Muslim couple who married legally will inherit from their parents and vice-versa. Supposing any of the children happens to be a non-Muslim, he will neither inherit from them nor will they inherit from him due to difference of religion which is an impediment to inheritance.

At this point let’s spell out what difference of religion really mean. Some scholars are of the view that each religion should be taken on its face-value while others argue that there are two religions only: Islam and others. Therefore, if we take a hypothetical family consisting of a Muslim father, Christian mother and Jewish child for example, based on the first opinion, none of them will inherit from one another, while the second view gives the mother and the child the right to inherit from each other. How they do that is left to them.

b) A Muslim man is permitted to marry a pious, reserved and religious Christian or Jewish woman. The children that result from such a marriage will inherit from the man and vice-versa if they are Muslims. Assuming the children decide to follow the religion of their mother, they will inherit from her only and vice-versa.

c) The children of a Muslim man who marries a woman that is neither a Christian nor a Jew such as a Buddhist, a Zoroastrian or an atheist will not inherit from him since they are not his legal children even though they may be his biological children. Why? Such marriage is not recognised by Shari’ah, hence it’s void. The children will inherit from their mother only and vice-versa. And if they are Muslims, they will also not inherit from her due to difference of religion.

d) A Muslim woman is not allowed to marry a non-Muslim man even if he is a pious, reserved and religious Christian or Jew. If the marriage takes place its void. But the children will inherit from her (and she will inherit from them) because she is their biological mother IF THEY ARE MUSLIMS, otherwise the difference of religion condition will set in and bar them from inheriting from one another.

e) If a man and woman fornicates, (Allah forbids), and a child is born as a result, whether or not they get married afterwards, the man is the biological father but NOT the legal father of the child but the woman is both the biological and legal mother. Hence such a child will inherit from his mother ONLY and vice-versa.

This is evident from a Hadith narrated by ‘Abdullah ibn ‘Amr ibn al-‘As who said: “The Prophet (peace be upon him) decided regarding one who was treated as a member of a family after the death of his father, to whom he was attributed when the heirs said he was one of them, that if he was the child of a slave-woman whom the father owned when he had intercourse with her, he was included among those who sought his inclusion, but received none of the inheritance which was previously divided; he, however, received his portion of the inheritance which had not already been divided; but if the father to whom he was attributed had disowned him, he was not joined to the heirs. If he was a child of a slave-woman whom the father did not possess or of a free woman with whom he had illicit intercourse, he was not joined to the heirs and did not inherit even if the one to whom he was attributed is the one who claimed paternity, since he was a child of fornication whether his mother was free or a slave.” Abu Dawud Collection.

The rulings in (c), (d) and (e) above do not imply that Islam condones any of these acts. The perpetrators are to be duly punished according to Shari’ah. We are interested in the inheritance of innocent children that are products of these unfortunate incidences.

f) A child will in addition inherit from his mother only after li’an (cursing for adultery) which happens when a man denies the paternity of his wife’s pregnancy and they end up swearing and cursing themselves. The Hadith of ‘Abdullah ibn ‘Amr ibn al-‘As above confirms this: “…but if the father to whom he was attributed had disowned him, he was not joined to the heirs…”

g) An adopted child will not inherit from his adoptive parents and vice-versa due to lack of biological relationship between them. But they can make a will in his/her favour which must not exceed 1/3 of their estates.

h) In-vitro fertilisation: This is the process of fertilising an egg with sperm in an artificial environment such as test-tube. A child produced using this method is popularly called “test tube baby.”

The procedure involves stimulation of the woman with injected medications to develop multiple follicles (egg-containing structures) in the ovaries. Thereafter, a trans-vaginal ultrasound-guided procedure is performed to remove the eggs from the follicles which are fertilized in the laboratory with her partner’s sperm. The embryos are finally placed in the woman’s uterus where they will hopefully implant and develop to result in a live birth.

According to Sheikh ‘Abd-Allaah al-Jibreen as cited by Sheikh Muhammad Al-Munajjid, in-vitro fertilization is permissible in Islam if certain conditions are fulfilled. They are:

  1. That there is a real need for that. A delay of one or two years in having children is not an excuse for the couple to pursue this or similar methods. Rather they should be patient, for Allah may grant them a way out soon without them doing anything that is haram.
  2. The woman should not uncover her ‘awrah before men when there are female staffs available.
  3. It is not permissible for the husband to masturbate; rather he may be intimate with his wife without penetration, and produce semen in this manner.
  4. The woman’s eggs and man’s sperm should not be kept in a freezer for later use, or another appointment, and there should not be any delay in placing them in the woman’s uterus. Rather that should be done immediately without any delay, lest they be mixed with others or be used for other people.
  5. The sperm must come from the husband and the egg from the wife, and be implanted in the wife’s uterus. Anything else is not permissible at all.
  6. There should be complete trust in the doctors who are doing this procedure.

As far as inheritance is concerned, the most important condition is (v). This does not imply that others are not important as well. When (v) is fulfilled, the child will inherit from both the father and mother and vice-versa. However, if there happens to be a mix-up such that another man’s sperm was used to fertilise the wife’s egg, the child will inherit from the mother only. Conversely, if the husband’s sperm was used to fertilise another woman’s egg, the child will inherit from the father only. In a situation whereby the sperm and egg of others were used, there will be no inheritance between the child and his “so-called” parents because they are no-more-than adoptive parents. Note that even if the child develops in the wife’s womb, so long as it’s not her egg, the biological connection that will necessitate inheritance between them is missing.

Son

1. If he is the only heir, he inherits the whole estate of his deceased father or mother.
2. When other heirs are inheriting along with him, he becomes a residuary i.e. takes whatever remains after other heirs have gotten their shares.
3. Two or more sons share equally the whole estate if they are the only heirs.
4. Two or more sons share equally the residue of the estate when other heirs are present.

Daughter

1. If a deceased has only one surviving daughter, she inherits half (½) of the estate irrespective of whether she is the only heir or not.
2. Two or more daughters share equally two-third (2/3) of the estate whether or not they are the only heirs.

One may be tempted to ask: what happens to the remaining ½ of the estate when a daughter is the only heir or the remaining 1/3 of the estate when two or more daughters are the only heirs? In other words, what is the ruling when available heirs do not exhaust the estate? Jurists differed on this. The various opinions are:

a) The residue goes to the bait-ul-mal (public treasury) because no heir should receive more than what Allah has prescribed for him/her.
b) The public treasury has been misused; therefore the heirs should redistribute the residue among themselves based on the initial sharing formula. This is technically called Radd.
c) The residue should be given to the cognates (relations whose connection to the deceased is traceable through the mother or female line) who are traditionally non-heirs.

Radd (reduction of base number) and inheritance of cognates are not covered in this website, thus they are included in Further Reading.

Son(s) and daughter(s)

In a situation whereby the deceased leaves behind a combination of sons and daughters in whatever form (i.e. son and daughter, son and daughters, sons and daughter or sons and daughters), they share the whole estate if they are the only heirs in a ratio of 2 to 1. Meaning that, a son is given twice the share of a daughter. But if other heirs (that are not excluded by them) are present, they [son(s) and daughter(s)] become residuaries in the sense that they will share the left-over or residue after other heirs have received their shares in the same ratio of 2 to 1. Allah says in the Qur’an:

“Allah commands you as regards your children’s (inheritance): to the male, a portion equal to that of two females…” Qur’an 4:11

Non-Muslims and Muslims who do not understand their religion argue that Islam is unjust to women in terms of inheritance. If not, why should it grant the male twice the share of the female even though they are children of the same parents? Answering this question, Hojjat al-Islam Mahdi Hadavi Tehrani says, “… Islam’s position on inheritance is in reality to the benefit of the woman. In the Age of Ignorance (Jahiliyya), the daughters and wives of the deceased were deprived of inheritance and all the wealth of the deceased went to his sons. Islam, however, came and annulled the laws of the ignorant times and made women amongst the inheritors of the deceased. From its inception, Islam gave women independence in ownership and monetary matters, this being a matter that has only but recently entered the laws of European nations. Even though apparently the inheritance of a man is double that of a woman, when we probe into the matter more thoroughly, we find that the inheritance of a woman is two times that of a man. The responsibilities that have been placed on the shoulders of men necessitates that they spend half of their income on women. Any given man is obligated to spend money on his spouse’s home, clothes, food, and other expenses, while the cost of living of himself and his children are on his shoulders. This responsibility of upkeep is to such an extent that even if a woman’s social position necessitates her having a servant and she herself does not have the means to pay for such a person, the salary of the aforementioned servant is upon her husband. These responsibilities are on the shoulders of men, whereas we see that women are exempted from paying any living expenses, including their own – whether clothes or food. Therefore and in all practicality, it is (the) woman who has more of a portion of wealth than (the) man…”

“… Consider, for example, that the sum total of all the wealth of the world is 30 billion pounds. Say that this wealth was distributed by means of inheritance between men and women. From this amount of money, 20 billion pounds went to men and 10 billion went to women. Since women do not have to spend on themselves, they can save that 10 billion and become partners with the men in the remaining 20 billion (since the portion of men is spent on women and children). So, half of the portion of men, which is 10 billion pounds goes to women. When we add this amount to the portion that the women saved from before, their sum total becomes 20 billion pounds…”

“…In the end, it is possible for us to say that if it is true that the expenses of the woman are upon the shoulders of the man, then what use does woman have in hoarding a large amount of wealth? We can answer by saying that the dowry and inheritance of the woman is like a savings that is for her future, in case she separates from her spouse or her spouse dies. It is so she can lead a comfortable and respected life in case such events happen. But the reason that the expenses of the woman is upon the man is so that she can, without any sort of mental anxiety, raise good and pious children. In this way the family, which is the cornerstone of society, will be filled with warmth and love…”

Grandson(s) and granddaughter(s)

In the absence of a deceased’s son(s) and daughter(s), his/her grandson(s) and granddaughter(s) through son(s) will “jump” and inherit all the rights and privileges of the substantive son(s) and daughter(s) respectively. Therefore,

  1. A grandson inherits the whole estate if he is the only heir or becomes a residuary in the presence of other heirs.
  2. Two or more grandsons share equally the whole estate if they are the only heirs or share equally the residue if other heirs are present.
  3. A granddaughter takes ½ of the estate, while two or more granddaughters share equally 2/3 of the estate in the presence or absence of other heirs.
  4. A combination of grandson(s) and granddaughter(s) in whatever form share the whole estate if they are the only heirs or share the residue when other heirs exist in the ratio of 2 to 1, i.e. each grandson takes twice the share of each granddaughter.
Daughter(s) and granddaughter(s)

Note that even though a granddaughter through a son acts like a daughter in the absence of her father, this right is limited in the presence of an actual daughter, because the maximum share of daughters, granddaughters or a combination of daughters and granddaughters is 2/3 of the estate. Thus, whenever daughter(s) and granddaughter(s) are inheriting together, the former get their full shares while the latter distribute the residue of 2/3 equally if any. As a result,

  1. One daughter, one granddaughter: Daughter gets ½; granddaughter gets 1/6, making 2/3.
  2. One daughter, two or more granddaughters: Daughter gets ½; granddaughters share 1/6 equally.
  3. More than one daughter, any number of granddaughters: Daughters share 2/3 equally; granddaughters get nothing.

This is the application of rules 2 and 3 of exclusion i.e. a daughter does not exclude grandchildren [children of her late brother(s)] and two or more daughters exclude strictly granddaughters respectively.

Daughter(s) and grandson(s)

We know that sons and daughters share the whole estate or its residue in a ratio of 2 to 1. In the absence of a son, the grandson through son will “jump” and replace him but he does not have the same “power” as the son if he is inheriting together with substantive daughter(s). He takes the residue after the daughter(s) and other heirs if present have received their shares. Thus,

  1. One daughter, one grandson: Daughter receives ½; grandson receives the residue. Residue here means ½ in the absence of other heirs or whatever is left when other heirs are present and have gotten their shares.
  2. One daughter, more than one grandson: Daughter gets ½; grandsons share residue equally.
  3. More than one daughter, one grandson: Daughters share 2/3 equally; grandson is given the residue.
  4. Two or more daughters, two or more grandsons: Daughters receive and share 2/3 proportionately; grandsons share the residue equally.
Daughter(s), grandson(s) and granddaughter(s)

As mentioned earlier, grandson(s) and granddaughter(s) divide the whole estate or its residue in a ratio of 2 to 1. But when inheriting along with substantive daughter(s), they will share the residue of the estate after the daughter(s) and other heirs (if present) have received their shares. Hence,

  1. A daughter, grandson(s), and granddaughter(s): Daughter receives ½; grandson(s) and granddaughter(s) share the residue in a ratio of 2 to 1.
  2. Two or more daughters, grandson(s) and granddaughter(s): Daughters gets 2/3 which they will share equally; grandson(s) and granddaughter(s) share the residue in a ratio of 2 to 1.

This is the application of rule 4 of exclusion which says that two or more daughters do not exclude grandchildren comprising of at least a grandson.

Son(s) and grandchildren

A son, sons or combination of son(s) and daughter(s) will inherit the whole estate or the whole residue; therefore there will be no any leftover for grandchildren to inherit from. This means that grandchildren get nothing. Recall rule 1 of exclusion: a son excludes all grandchildren.


Quick links

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!

Read the mails