Indeed all praises are due to Allah, we praise Him, we seek His help, we ask for His forgiveness, and we rely solely on Him. We seek His refuge from the evil in our souls and from our wicked deeds. Whoever Allah guides, no one can misguide. And whomever Allah misguides, no one can guide. I bear witness that there is no one worthy of worship except Allah, He is One, with no partners, and I testify that Mohammad (ﷺ)  is His Messenger and His slave. 

This article is published in 6 parts:

1. Introduction & General Rules: Inheritance in Islam (1)
2. Primary Heirs: Inheritance in Islam (2)
3. Secondary Heirs: Inheritance in Islam (3)
4. Other Rules: Inheritance in Islam (4)
5. Share Distribution & Examples: Inheritance in Islam (5)
6. Islamic Will: Inheritance in Islam (6)
7. Conclusion: Inheritance in Islam (7)

PART 4: OTHER RULES

Doctrine of al-Awl (العول)

• Al-Awl applies when after the allocation of shares amongst the Primary Heirs (Ashabul-Furud) the total sum of shares is greater than one, then all the shares are decreased proportionately.
  • An exception to this is inheritance amongst the distant kindred under the system of Tanzil (shafii/hanbali)
• Example, if the distribution of property is amongst Husband, Mother, Daughter and Son’s Daughter. There shares will be:
  • Husband 1/4, Mother 1/6, Daughter 1/2, Son’s Daughter 1/6. Total Shares = 13/12
  • Here share distribution is more than available shares. This situation is handled by applying Doctrine of Al-Awl.
• Doctrine of Al-Awl is based on Ijma. It was established during Caliphate of Umar bin al-Khattab.
• Basic point is that Quranic shares are does not represent absolute entitlement and they are based eligibility and impediment rules, and they based on ratios.
• Distribution of Shares under Al-Awl:
  • When total shares are > 1, then we apply al-awl.
  • It involves increasing the common denominator of all the fractional shares to same value as the sum of all the numerators. The numerators are unaltered.
  • Awl only occurs when there is a daughter, agnatic granddaughter (however low in chain), full sister or consanguine sister amongst the heirs. i.e. they get 2/3 (1/2 or 1/6 each)

Example of Al-Awl العول

• Husband 1/4, Mother 1/6, Daughter 1/2, Son’s Daughter 1/6. Total Shares = 13/12
• Since allocation of shares is more than available share, we apply Al-Awl.

Example of Al-Awl العول

• This method of fraction is very easy if one is not using calculator and XL. Although, same can be achieved using XL formula and percentages; i.e. by adding shares (1/4+1/6+1/2+1/6=1.0833) and then diving each share (1/4 / 1.0833 = 23.08%) to get share percent. Point is their share is reduced as per their share ratio based on method of Al-Awl.
• Also note that Al-Awl only occurs when there are improper fractions. Typically, improper fraction only occurs when denominator is 6, 12, or 24.

Doctrine of ar-Radd (الرد)

• Al-Radd applies when after the allocation of shares amongst the “Fixed Sharer” there is still a left over (residue), and there are no Secondary Heir (residuary) to claim this residue. Then this residue is returned back to certain primary heirs.
• The Doctrine of Al-Radd is based on Quranic verse 33:6 “Blood realtives are nearer, the one to the other, than other believers”³⁷. Hence, those prefer doctrine of Al-Radd suggested that its preferred to give residue to a any blood relative then giving it to Bait-ul-Maal.
• Example, A man dies leaving behind a widow and a daughter as heirs. Their Fixed Shares will be:
  • Total Estate for inheritance is $800,000
  • Widow’s share is 1/8 ($100,000), Daughter 1/2 ($400,000). Total shares = 5/8 ($500,000)
  • Here Residue (left over) is 3/8 ($300,000).
  • This residue needs to be returned back to the heirs. This returning back is called Ar-Radd.
• There is difference of opinion on practicing Ar-Radd. 
  • Hanafi and Hanbali fiqh adopted the doctrine of ar-Radd. 
  • Zaid bin Thabit, Imam Shafii and Imam Malik did not apply ar-Radd and all residues were given to Bait-ul-Maal. However Shafii jurist accept ar-Radd if there is no properly administered Bait-ul-Maal (such as these days).
• There is also difference of opinion on who is eligible for Ar-Radd and how it should be distributed. 
  • One group states that all Quranic Heirs are eligible for Al-Radd. This include Osman bin Affan (ra)
  • Other group includes Abdullah bin Masood and Abdullah bin Abbas (ra) had different views.
• Daleel for Al-Radd is taken from Verse 33:6 “Blood relative are nearer, the one to the other, than other believers”. Hence, it’s better to give Al-Radd to blood relative then to give it to Bait-ul-Maal.
• Distribution of Share under Ar-Radd
  • Distribute all shares to (Ashab-ul-Furud) Primary Heirs, if there is left over (residue) then 
  • Firstly Secondary Heirs are entitled to Residue first, but if there are no Secondary Heirs, then
  • Residue is given back to the Primary Heirs, except the Spouse. Spouse is no considered a Blood relative, and since the Doctrine of Radd is based on Verse 33:6 (Blood Relative first), spouse is not considered for Ar-Radd.
  • Normally following are the sharer of Ar-Radd, (i.e. Quranic Sharers):
    • Mother, True Grandmother
    • Daughter, Son’s Daughter
    • Full Sister, Consanguine sister
    • Uterine brother, uterine sister
    • Remember, when father is alive, he gets all residues any ways, if there are no other claimants from secondary heirs.
    • Spouse is excluded, as mentioned.

Example Al-Radd الرد

• Total Estate for inheritance is $800,000
• Widow’s share is 1/8 ($100,000), Daughter 1/2 ($400,000). Total shares = 5/8 ($500,000)
• Here Residue (left over) is 3/8 ($300,000).

Example Al-Radd الرد

• Widow is excluded from Al-Radd and total Residue was returned to Daughter.
• Widow gets 1/8 fixed share because there is a child (i.e. Daughter)
• Daughter get 1/2 fixed share because she is the only Daughter.
• Daughter get additional residue of 3/8 making her total share as 7/8 (i.e. 1/2+3/8).

Simultaneous Death (مناسخه)

• General principle of Mirath is that the claimant of inheritance must be alive at the time of death of propositus. Hence, if two mutual heirs die simultaneously, then they cannot inherit from each other.
  • Hanbali, Shafii, Maliki said that if sequence of death of two mutual heirs is not ascertained, then it is assumed to be simultaneous. Then neither can inherit from each other, this is based on practice of Abu Bakr and Umar Al-Khttab (ra).
  • Shafii said if sequence of death of two mutual heirs cannot be ascertain, then the inheritance is suspended until its ascertained or there is mutual agreement amongst the heirs on who died first.
  • Hanafi said even if sequence cannot be ascertained they can still inherit from each other. This is based on view of Ali and Abdullah bin Masood (ra).
• Example of this is if two brothers died simultaneously or father or son dies simultaneously etc.
• If there is simultaneous death of mutual heirs and sequence is known, then this situation is called Manasikha (مناسخه). Then inheritance is divided multiple time, one for the first person and then for subsequent person.

Few Other Cases

Child – Special Cases

Illegitimate Child (ولد الذنا)

• The Prophet said, Prophet (pbuh) said: “If a man commits fornication with a free woman or a slave woman, the child is the product of fornication, he neither inherits nor may anyone inherit from him” [Thirmidi]³⁸ 
• Illegitimate child doesn’t inherit from the father and the father does not inherit from the illegitimate child.

Adopted Child (تبنّي)

• In Shariah, the adopted child is not considered as real son, hence doesn’t get any share in inheritance. Though guardian can add him in the Will (which is max of 1/3 of estate).

---- وَمَا جَعَلَ أَدْعِيَاءكُمْ أَبْنَاءكُمْ ذَلِكُمْ قَوْلُكُم بِأَفْوَاهِكُمْ ---- ادْعُوهُمْ لِآبَائِهِمْ هُوَ أَقْسَطُ عِندَ اللَّهِ فَإِن لَّمْ تَعْلَمُوا آبَاءهُمْ فَإِخْوَانُكُمْ فِي الدِّينِ وَمَوَالِيكُمْ

33:4 ... nor has He made your adopted sons your real sons. That is but your saying with your mouths. ...... 33:5 Call them (adopted sons) by (the names of) their fathers, that is more just with Allah. But if you know not their fathers (names, call them) your brothers in faith and Mawaleekum (your freed slaves).

• All rules continue to apply on adopted Child.
  • Adopted child must observe Mahram/Non-Mahram, and can not mix with non-mahram especially with sons and daughters of adopted parents.
    • If the adopted child was adopted at very small age and shares milk with mother, then he can mix with sons/daughters, as he/she is now a milk-brother/sister and can no longer marry with them.
  • Adopted child can marry with other Childs of adopted parents
  • Adopted child do not inherit from adopted parents.

Other Cases

Unborn Child (جنين)

• General rule is that unborn child is only eligible to inherit if he is born alive.
• If the child is born alive but die subsequently, then shares are distributed amongst his/her heirs.
• Share distribution
  • Hanfi, Shafii and Hanabli allows distribution of share after the shares of unborn child are reserved  based on all possible calculation (either as male or female)
  • Maliki suspend distribution of share until the child is born and his sex is dertmined.

Hermaphrodite (خُنثىا المـُشَكَّل)

• If an individual’s gender cannot be determined then he is called Khunta Al-Mushkal (خُنثىا المـُشَكَّل)
• Such person’s sex is determined based on his physical (genital organs) and sexual characteristics (beard, breaths, menstruation). 
• Their share is calculated both as male and female
  • Hanafi said Khunta Al-Mushkal gets whichever share is smaller (either as male or female). This is majority opinion of Companions of the Prophet.
  • Amir bin Shurahbil Al-Shabi (ra) who based his opinion on Abdullah bin Abbas (ra) stated that Khunta Al-Mushkal gets half of the combined shares (both as male and female), hence making it as average share. Hanbali and Shafii states that if gender cannot be determined then take this approach.

‏Missing Person (مفقود)

• ِA missing person about whom it is not known whether he is dead or alive is called Mafqood (مفقود)
• In Shariah such missing person is considered alive unless his death is confirmed.
• Share of missing person is reserved until he returns. If he doesn’t return and his death is confirmed then his share are distributed amongst his heirs.
• His death date is considered to be date when he was gone missing. Based on that date his legal heirs are ascertained.
• There is difference of opinion on the wait period for return of missing person
  • Imam Abu Hanifa considered 120 years, Imam Muhammad considered 110 y ears, Imam Abu Yusuf 105 years. Hanafi jurist generally puts it as 90 years (as normal life span).
  • Maliki considered it to be 70 years.
  • Shafii and Hanbali allowed court to determine the length of time. However, Imam Ahmed considered minimum 4 years, and Imam Shafii minimum 7 years if there is strong presumption of death (like in war).

FOOTNOTES

37. Quran 33:6
38. Thirmidhi