# Residuaries (‘asabah)

These are heirs who:

1. Inherit the whole estate when they are the only heirs but in the presence of other heirs who do not exclude them, they receive the residue.
2. When they are the only heirs, they are given ½ or 2/3 of the estate, but in the presence of some “specific” heirs, they
a) Share the residue with those “specific” heirs, or
b) Receive the residue after some “specific” heirs [different from those in (a)] have gotten their shares of the estate.

In other words, there are 3 categories of residuaries:

i) Residuaries by themselves (i.e. those that satisfy 1 above).
ii) Residuaries by another (i.e. those that satisfy 2a above).
iii) Residuaries with another (i.e. those that satisfy 2b above).

##### Residuaries by themselves (‘Asabah bin-Nafs)

These are:

1. Son
2. Grandson or his descendant
3. Father
4. Grandfather or his ascendant
5. Full brother
6. Consanguine brother
7. Full brother’s son or his descendant
8. Consanguine brother’s son or his descendant
9. Full paternal uncle
10. Half paternal uncle
11. Full paternal uncle’s son or his descendant
12. Half paternal uncle’s son or his descendant

We have looked at inheritance of a, b, c, d, e and f. The same ruling applies to other members of the set i.e. they inherit the whole estate or the residue when other heirs who do not exclude them are present. Of course, son and father cannot be excluded by any heir. Likewise, grandson (or his descendant) and grandfather (or his ascendant) in the absence of son and father respectively cannot be excluded.

Now, there seems to be a problem. If two heirs (of different classes) listed above are present and both are eligible to inherit, will they share the whole estate or residue among themselves? No, the heir occupying a higher position in the hierarchy takes the residue, while the second one is given his due share of the estate.

For example, a man leaves behind a wife, two sons and father. How will his estate be distributed? The wife is given 1/8. This is clear. But the two sons on one hand and the father on the other hand are both residuaries by themselves. However, since the sons are above the father (i.e. they occupy the 1st position while the father comes 3rd), he (the father) is given 1/6 of the estate while the two sons share the residue equally.

Supposing the surviving heirs were to be grandson, grandfather and consanguine brother; what happens? We know that grandfather can inherit along with a consanguine brother but grandson excludes the latter. As a result, grandfather receives 1/6 while grandson gets the residue given that he is above grandfather in hierarchy.

##### Residuaries by another (‘Asabah bil-ghair)

This category has 4 heirs. They are:

1. Daughter
2. Granddaughter through son
3. Full sister
4. Consanguine sister

Each is entitled to ½ of the estate if alone while two or more share 2/3 of the estate equally if they are not excluded. Note that daughter cannot be excluded. Now, if any of these listed heirs is inheriting along with her male counterpart (i.e. son, grandson, full brother and consanguine brother respectively), she is no longer given ½ or 2/3 as the case may be. She becomes a residuary with the male. This has already been discussed under the subheadings: son(s) and daughter(s), grandson(s) and granddaughter(s), full brother(s) and full sister(s) as well as consanguine brother(s) and consanguine sister(s).

##### Residuaries with another (‘Asabah ma’al ghair)

These are full sister and consanguine sister. In the presence of daughter(s), granddaughter(s) through son(s) or a combination of daughter and granddaughter(s), full sister or consanguine sister (if not excluded) will abandon her ½ or 2/3 (if more than one) to become a residuary.

For instance, the heirs of a deceased are three daughters, two granddaughters through son, one full sister and a grandmother. How will the estate be allotted to them? The three daughters will share 2/3 equally, grandmother gets 1/6 while full sister is given the residue. The two granddaughters are excluded (rule 3).

Assuming a grandson is added to the heirs, daughters will still get their 2/3, grandmother retains her 1/6, but now the granddaughters will be the residuaries due to the presence of grandson. So, the three of them (i.e. grandson and two granddaughters) will share the residue in a ratio of 2 to 1 to 1. This implies that full sister is excluded (rule 18).

Note that if the estate gets exhausted such that there is no left-over, residuaries receive nothing. Exceptions to this rule are son and father who are “basic heirs.” NO circumstance will arise in which the duo will become “spectators.” In their absence, grandson (or his descendant) and grandfather (or his ascendant) respectively replaces them to become basic heirs.