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Causes and Impediments of Inheritance

Causes of Inheritance #

There are three causes of inheritance:

  1. Blood relationship (al-Qarābah),
  2. Marriage concluded by a valid contract, and
  3. Al-wilā’
  4. We can bring these three causes under two heads: consanguinity (nasab) and affinity (sabab). By nasab I mean blood relationship, and sabab includes both marriage and al-wilā’ is a bond existing between two persons which creates between them a relationship similar to nasab. Hence a person manumitting a slave becomes his mawlā and inherits from the latter if he has no other heir. We will not discuss here al-wilā’ with its different meanings and forms because it has no practical application today, and will discuss only the two other causes.     Blood relationship (al-qarābah ) is established between two persons through legitimate birth when one of them is a direct descendant of the other (such as fathers how high so ever, and sons how low so ever), or when both of them are descendants of a third person (such as brothers and maternal and paternal, uncles). Legitimate birth materializes through a valid marriage as well as through ‘intercourse by mistake.’ But the marital bond will not materialize except through a valid marriage between man and woman. There is no difference of opinion regarding mutual inheritance between husband and wife. The schools, however, differ concerning the right of inheritance of certain relatives; the Shāfi`ī and the Mālikī schools deny them such a right and consider them exactly like strangers. These relative share: daughter’s children, sister’s children, daughters of brothers, children of uterine brothers, all kinds of paternal aunts, uterine paternal uncle, maternal uncles and aunts, daughters of paternal uncles and the maternal grandfather. There fore, if a person dies and has no relative3 except one of those mentioned the heritage escheats to the public treasury (bayt al-mal) and they will not receive anything, according to the Shaafi’ee and Maaliki schools, because they are neither among the sharers (dhawu al-furud) nor among the residuaries (‘a~ab~t).(al-Mughni, 3rd ed. vol. 6, p.229)

The Hanafi and the Ḥanbalī schools consider them capable of inheriting in the particular situation where there are no sharers and residuaries.

The Imāmīs consider them capable of inheriting without this condition. Details will follow.

Impediments to Inheritance #

The schools concur that there are three obstacles to inheritance:

  1. Difference of religion,
  2. Murder, and
  3. Slavery. Ignoring slavery, we will discuss the other two causes.

Difference of Religion #

There is consensus that a non-Muslim will not inherit from a Muslim[1]. 6 The schools differ regarding a Muslim inheriting from a non-Muslim. ‘He inherits,’ say the Imāmīs; ‘He does not,’ say the other four schools.

If one of the decedent’s sons or relatives who is a non-Muslim becomes a Muslim after his death and after the distribution of the heritage between the heirs, he is not entitled to inherit by consensus. The schools differ as to whether he inherits if he becomes a Muslim after death but before the distribution of the heritage. He inherits according to the Imāmīs and the Ḥanbalīs, and not, according to the Shāfi`ī’ the Mālikī and the Hanafi schools.

The Imāmīs state: If there is a single Muslim heir, he will take the whole heritage and the conversion of another to Islam will not entitle him to inheritance.

A murtadd from Islam does not inherit in the opinion of the four Sunni schools, irrespective of his apostasy being ‘an fitrah or ‘an millah, 7 except if he returns and repents before the distribution of the heritage. (al-Mughni, vol. 6)

The Imāmīs observe: A murtadd ‘an fitrah, if a male, will be sentenced to death without being asked to repent, and his wife will observe the ‘iddah of death from the time of his apostasy, and his estate will be distributed even if he is not executed. His repentance will also not be accepted concerning the dissolution of his marriage, or the distribution of his estate, or the Wujoob of his execution though it will be accepted in fact and by God, as well as in regard to other issues such as the ritual cleanliness of his body and the validity of his acts of worship (‘ibfidfit). Similarly, he may own after his repentance new properties acquired through work, trade, or inheritance.

A murtadd ‘an millah will be asked to repent. If he does so, he will have all the rights and obligations of Muslims. If he does not repent, he will be executed and his wife will observe the ‘iddah of divorce from the time of his apostasy. Then if he repents while she is undergoing ‘iddah, she will return to him and his property will not be distributed unless he dies or is killed.     A woman will not be sentenced to death irrespective of her apostasy being ‘an fitrah or ‘an malah. But she will be imprisoned and beaten at the times of s!~ldt till she repents or dies. Her heritage will be distributed only after her death. (al-Sayyid Abu al-Hasan’s Wasllat alnajat and Sheikh Ahmad Kaashif al-Ghi~a”s Safeenat al-najat, baab al-‘irth)

Inheritance of Followers of Other Religions #

The Maaliki and the Ḥanbalī  schools say: Followers of different religions will not inherit from each other. Hence a Jew will not inherit a Christian and vice versa, and similarly the followers of other religions.

The Imāmi the Hanafi and the Shaafi’ee schools state: They will inherit from one another because they are a single religious group, considering that all of them are non-Muslims. But the Imāmīs lay down a condition in the case of a non-Muslim inheriting from another of his kind, that there be no existing Muslim heir. Therefore, if such an heir is present, even though distant, his presence will prevent a non-Muslim heir, even if he is closely related, from inheriting. This condition is not relevant to the other four schools, because according to them, as mentioned earlier, a Muslim does not inherit from a non-Muslim. (Ghayat al-muntaha, vol. 2, alShi’rani’s M~zan, a-Jawaahir and al-Ma~alik)

Extremists #

(al-Ghulāt)

Muslims are unanimous in holding that the Ghulat are polytheists (mushrikun) and do not belong to Islam and Muslims in any manner. The Imāmīs have been specially severe concerning the issue of the Ghulat because a large number of their Sunni brothers have unjustly attributed to them the deviations of the Ghulat. The Imāmi ‘ulama’ have unequivocally mentioned in their books on doctrine and law that the Ghulat are kafir. Accordingly, al-Sheikh al-Mufid in Sharh ‘Aqa’id al-Saaduq (p.63, 1371 H.) says:

The (ghulat feign to follow Islam. They are those who attribute divinity and prophethood to Amir al-Mu’mim’n ‘Ali and the Imāms of his descent, and exceed all limits and deviate from the mean concerning their excellence in the religion and the world. They are misguided, unbelievers, whom Amir al Mu’minin ordered to be killed and burnt, and the Imāms judged them as un believers and apostates from Islam.

The Imāmi ‘ulama’ mention them in their legal works in the chapter on Tahaarah (purification), and consider them ritually uncban. Their mention also occurs in the chapter on marriage, where it is observed that the marriage of Muslim women with them, as well as marrying their women, is haram, although the ‘ulama’ permit marriage with women of Ahl al-Kitab. The mention of Ghulatis also made in the chapter on jihad, where they are considered polytheists in a state of war. In the chapter on inheritance, the ‘ulama’ prohibit their inheriting from Muslims.8

One Who Denies an Essential of the Faith #

There is consensus among the schools that a person who denies any of the established and known doctrines of the faith and consides a haram as halal or vice vesa, making that his creed, goes out of the pale of Islam and becomes an infidel. To this category also belongs one who attributeskufr to a Muslim.      It is worthwhile here to point out two issues that have been dealt in detail by the highly learned and leading Imāmi scholar Aqa Ri~a al Hamadani in Mi~bah. al-faqih, vol. I.

  1. If a person appears to follow Islam and pronounces the Shahad atan, though we do not know whether he does so hypocritically, with out having faith in it, or pronounces them with veritable faith, there is no difference of opinion in judging him a Muslim. But if we have knowledge of his falsity and know that he has no faith in God and the Prophet (S) but only presents himself as a Muslim hypocritically with a certain purpose in view, will we consider him a Muslim?

The gist of the Shaykh’s opinion is that this hypocrite has a reality and an appearance. As to the reality he is a non-Muslim, though his appearance presents him as a Muslim. It is our duty to leave his reality to God Almighty’s judgement, and there is no doubt that God will deal with him as a non-Mwlim, because it is presumed that he is such in reality. But we, Muslims, will accept his appearance and associate with him as a Muslim regarding marriage and inheritance, because we have been ordered to do so. It is stated in a tradition:

He who says ‘la ilaha illa Allah, ‘ his life and property are secure.

This implies that he will be treated as a Muslim, irrespective of any doubt on our part and our knowledge of his verity or falsity. This is also confirmed by the Prophet’s treatment of the hypocrites, whom he treated in the same manner in which he treated other Muslims, though he knew of their hypocrisy (nifaq).

  1. The secret behind the consensus of Muslims regarding the kufr of a person denying an established rule is that this denial as such neces sitates the denial of the Prophet’s prophethood. It follows from this that a person making such a denial, on becoming aware that his rejec tion amounts to rejecting the prophethood and the messengerhood of the Prophet (S), will be doubtle~;ly considered a non-Muslim. But if he is not aware of it—either because of ignorance, or his belief that his denial does not necessitate the denial of prophethood—will he be con sidered a non-Muslim?

The summary of the Shaykh’s reply is that an ignorant person can be viewed in different situations. At times his ignorance is the result of his absorption in sin and absence of attention to what is ~aram (like a person who has indulged constantly in fomication from the first day to his present old age, and this continuity has developed in him the belief that his act is halal, not haram); such a person is definitely a kdfir.

At times his ignorance is due to his following a person whom it is not valid to follow. Such a person is also a nonMuslim even if he believes that his denial does not lead to denying the Prophet’s messenger hood.9

  1. It may be that none of the two above-mentioned causes are the result of his ignorance; rather, his ignorance may be the result of his lack of attention to the station of prophethood, so that U he is informed about it he would desist from his denial. Such a person is doubtlessly a Muslim because he resembles one who disputes regarding a certain thing with the Prophet ~S) while not recognizing him, but when he comes to recognize that he is the Prophet (S), he refrains and is penitent.

There are other cases mentioned by the author of Mi~bah al-faq’~h which we leave for reasons of space. Those seeking details should refer to the first volume of the book.

Homicide #

The schools concur that homicide when intentional and without legal authority impedes inheritance. Thi6i6basedonthetradition:

There is no (share in) inheritance for a murderer.

Moreover, since the murderer’s act expedites inheritance, his intention will be frustrated. Apart from this, the schools differ.     The Imāmīs observe: He who kills hi6 relative as qisas or in self-deience or on the orders of a just judge, or for similar other reasons justified by the Shari’ah, in these instances homicide is no obstacle to inheriting. Also, unintentional homicide (al-qatl khata’) is no hin drance.l °

The author of a-Jawaahir states: The intentional act of a child and a lunatic is considered khata’ (mistake). Similarly kha~a’ includes a quasi-intentional act (shibh al-‘amd). An instance of shibh al-‘amd is where a father beats his child with an intention of correcting him and the child dies as a result of the beating. Al-Sayyid Abu al-Hasan al 1sfahani writes in al-Wasllah: “Some of the causes ~rhich lead to death —like digging a well on a road, if a relative falls in it—the person having dug the well will inherit him, though he will be liable to pay the com pensation (diyah).” Accordingly, there i6 no hindrance to the concur rence of the liability to diyah and inheritance.

Each one of the four Sunni Imām6 has a separate opinion in this case. The opinion of Imām Malik concurs with the Imāmīs. The opinion of al-lmam al-Shaafi’ee is that unintentional homicide is an ob6tacle to inheritance, just like intentional murder; the same is the case where the murderer is a child or a lunatic. The opinion of Imām Ahmad is that a homicide that calls for punishment, even if of a monetary kind, impedes inheritance. Thi6 exclude6 lawful killing, such as killing for qi~, or in self-defence, or in war, the killing of a rebel (baghf) at the hands of an ‘add person — in all these cases he will inherit. The opinion of Imām Abu Hanifah i6 that a homicide which hinders inheritance is one which necessitates qisa~ or diyah or kaffarah (atonement). This includes al-qatl al-kha~a, but not al-qatl bial-tasbfb (where the accused is an indirect cause of homicide) or homicide by a lunatic or a minor.

(al-Mughni, vol. 6, and Abu Zuhr~’~M’rdth al-JaYariyyah)

NOTES:

  1. The author of al-Jawaahir say~: The preponderant (ma~hhur) opinion among the Imāmīs legi~ b that tho~e related through the mother do not inherit the compen~ation for in~oluntary homicide. Ar to the right to qi~ it i~ inherited by all tho~e who inherit the heritage e~cepting the hu band and the wife, who, however, will inherit the compensation in lieu of Qisaas

2 Al-Shaykh Ahmad Kashif al (}hita’;Sa)Snat al-m~jat, baab al-wa~aya

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6

  1. Al-Muffadd ‘an fitrah is a born Muslim who apo4tatizea Al-Murtadd ‘an millah  one born to kafir parent~ who then becomes a Mu~lim and later desert~ hi4 faith

8 I believe that there i~ no one today who con iders ‘Ah’ (A) and his descendants to posses~ divinity and that thi4 sect ha~ become estinct I have myself vi4ited those places in Syria which are inhabited by the ‘Alawi~, who are accu4ed of hold ing such beliefs 1 lived among them for a few days and travelled from one village to another in their region I saw them following Islamic practices like all other Muslims, without the least difference What do we say about one who proclaims from the ma’adhin at the times of prayer “La ilaha illa Allah, Muhummad rasul Allah”7 I4 not negating the divinity of all escept Allah contrary to accepting the divinity of oth~? Then how i~ it correct to attribute ~huluww to them, when aod has ~d:

And do not say to anyone who offers you peace: ‘You are not a belieuer’~ (4:94)

  1. This i~ when he can acquire knowledge of the facts but neglects to do 80. But one incapable of acquiring such knowledge is excusable.
  2. The author of al-Jawahir ha~ narrated from a large number of Imāmi legists that a culprit in an unintentional homicide is prevented from inheriting the compensation, without being prevented from inheriting from the remaining heritage.

[1] The word ‘Muslim’ includes all those who pray facing towards the Ka`bah (ahl al-qiblah). Hence a Sunni inherits from a Shi’; and vice versa, in accordance with Qur’án, the Sunnah.  Rather, this rule is among the essentials of the faith, exactly like the wujúb of salát and fasting.

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