Inheritance in Islam (3)

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Fiqh
إن الحمد لله نحمده ونستعينه و نستغفره ونتوكله إليه ، ونعوز بالله من شرور أنفسنا و سيئات أعمالنا ، من يهده الله فلا مضل له و من يضلل فلا هادي له ، وأشهد أن لا إله إلا الله وحده لا شريك له ، وأشهد أنّ محمد عبده و رسوله ، و صلي الله على سيدنا محمد و على آله و آصحابه و سلم - أما بعد:

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 3: SECONDARY (RESIDUARIES) HEIRS - AL-ASABAT (العصبة )

العَصَبَة means to agnation, blood, blood relationship, consanguinity35. Here it means those close relatives of the deceased whose shares are not determined or fixed. The Al-Asabah gets their shares as residue:

  • After Ashab-al-faraid (primary heirs)’s shares are calculated, or
  • In the absence of a primary heirs

This is instructed by the Prophet (ﷺ) as: 

Hadith
حَدَّثَنَا مُوسَى بْنُ إِسْمَاعِيلَ، حَدَّثَنَا وُهَيْبٌ، حَدَّثَنَا ابْنُ طَاوُسٍ، عَنْ أَبِيهِ، عَنِ ابْنِ عَبَّاسٍ ـ رضى الله عنهما ـ عَنِ النَّبِيِّ صلى الله عليه وسلم قَالَ ‏ "‏ أَلْحِقُوا الْفَرَائِضَ بِأَهْلِهَا، فَمَا بَقِيَ فَهْوَ لأَوْلَى رَجُلٍ ذَكَرٍ ‏"‏‏.‏
Narrated Ibn `Abbas: The Prophet (ﷺ) said, "Give the Fara'id (the shares of the inheritance that are prescribed in the Qur'an) to those who are entitled to receive it. Then whatever remains, should be given to the closest male relative of the deceased ." [Sahih al-Bukhari]36

They have two categories:

1. Asabat Nasbiyyah (نسبية): Blood relation

2. Asabat Sababiyyah (سببية): Special cause

Residuaries inherits whatever remains (the residue) of the estate after the fixed sharers (or Primary Heirs) have been allotted their share, as mentioned by the Prophet (pbuh).

A. Al-Asabat Nasabiyyah (العصبة نسبية) – Blood Relative:

In Shariah, Asabat Nasbiyyah consists of all male agnates and four specified female agnates.

  1. Male Residuaries: Agnate relatives of the deceased are those between whom and the deceased no female intervenes. All residuaries are related to the deceased through male.
  2. Female Residuaries: four females are also included that are all connected through a male agnate, i.e., Daughter, Daughter of Son (however low), full sister, consanguine sister.
  • Exception: some heirs who normally inherit as primary heir can be converted into residuaries under certain circumstances.
  • Asabat Nasabiyyah is divided into three:
    1. Al-Asabah binafsihi (العصبة بنفسه)
    2. Al-Asabah bighayriha (العصبة بغيرها)
    3. Al-Asabah ma’a ghayriha (العصبة ما غيرها)

a) Al-Asabah binafsihi (العصبة بنفسه) – Asabah by them selves

Al-Asabah binafsihi (عصبة بنفسه) is an heir who is a residuary in his own right. E.g. son, son’s son (or further sons of the sons), father, brother, paternal uncle. 

  • These are male agnates of deceased. Or Male relatives who are not linked to the deceased with any female. 
  • Some heirs who normally inherit as “primary heir” can be converted into “residuaries” under certain circumstances, e.g. daughter when there is son.
  • Basic principle in distributing shares amongst Al-Asabat, that the nearest to the deceased gets the remainder of the share after paying the share of Dhul-Farood (ذو الفروض). Hence, they are graded into four ranks that define their priority sequence. Higher priority is given to first group, if they don’t exists, then the next group and then the next :
    1. Priority 1: Descendants of the deceased: sons of deceased, sons of the sons and further down. 
    2. Priority 2: Ascendants of the deceased: father of deceased, then real grandfather, then real great grandfather, then so on
    3. Priority 3: Descendants of the father: They are brothers of deceased, then the sons of the brothers, and their sons.
    4. Priority 4: Descendants of the grandfather: They are uncles of the father’s side, then their sons and son’s son, and further lower in the chain.

b) Al-Asabah bighayriha (العصبة بغيرها) – Asabah because of others

Al-Asabah bighayriha (العصبة بغيرها) is one who becomes a “residuary” in the right of another heir. E.g. daughter with son, son’s daughter with son’s son, full sister with brother, consanguine sister with consanguine brother. These are female agnates

c) Al-Asabah ma’a ghayriha (العصبة ما غيرها) – Asabah together with others

Al-Asabah ma’a ghayriha (العصبة ما غيرها) is Heir who becomes a “residuary” when inheriting with Al-Asabah bighayriha (العصبة بغيرها). E.g. full sister and consanguine sister inheriting with daughter or son’s daughter. (Based on tradition of the prophet (pbuh)).

Four Female agnates as residuary:

There are four female agnates who can inherit as residuaries

  1. Daughter
  2. Daughter of Son (however low in chain)
  3. Full Sister
  4. Consanguine sister

Principle of Tasib

No female is primary residuary but only becomes a residuary in the presence of a co-existing male residuary of the same degree and consanguine relationship to the deceased. This is principle of Tasib. Thus,

  • Daughter: son converts daughters into residuaries
  • Daughter of Son: Son’s son converts son’s daughter into residuaries
  • Full Sister: Full brother converts full sister into residuaries
  • Consanguine sister: Consanguine brother converts Consanguine sister into residuaries
  • Tasib doesn’t apply to: widow, true grandmother, uterine sister. These are Quranic heirs mentioned directly by Quran.
  • Two Exceptions:
    • Father converts mother into residuary
    • Sister (Full/consanguine) inheriting as residuary (when co-existing with a daughter or son’s daughter)

Shares of Al-Asabat Nasabiyyah (العصبات نسبية)

Rules of inheritance amongst the residuaries:

  1. Rule # 1: Residuaries inherits whatever remains (the residue) of the estate after the fixed sharers (or Primary Heirs) have been allotted their share.
  2. Rule # 2: If there is No Primary Heir or if there is No Residuaries ...
    • If there is no “Primary Heir” then “Residuaries” takes the whole estate
    • If there is no “Residuaries” then the “Primary Heir” takes the residue (Doctrine of ar-Radd)
  3. Rule # 3: Basic principle in distributing shares amongst Al-Asabat, that the nearest to the deceased gets the remainder of the share after paying the share of Dhul-Farood (ذو الفروض). Hence, they are graded into four ranks that define their priority sequence. Higher priority is given to first group, if they don’t exists, then the next group and then the next
  4. Rule # 4: Nearer in degree exclude the more remote within the limits of each class of heirs (الاقرب فالاقرب). The nearer in relation gets priority over father in relation. E.g. between son and grandson (son’s son), son is closer in relation. Hence son will take the entire share and grandson will get nothing (either if he is grandson from same son, or from other sons).
    • Amongst collaterals, the strength of blood line determines priority. Full blood takes preference over half-blood through father. E.g. Full sister takes preference over consanguine brother/sister.
    • If there are many sharers in same level and are equally close, then all of them will get equal share.
    • Real brother will supersede half-brother, and real-uncle will supersede half-uncle.
  5. Rule # 5: Whoever is related to the deceased through another person will not inherit while that person is alive. E.g. if father is alive, brother and sister are totally excluded
  6. Rule # 6: Descendants take priority over ascendants who take priority over collaterals.
    • Exception: Father cannot be excluded by son
    • Exception: All collaterals are excluded by father or true grandfather (e.g. father exclude brother/sisters, True grandfather exclude uncles etc) – Hanafi View based on Abu Bakr, Aisha (ra).
    • Malki, Shafaai, Hanbli, Imam Abu Yusuf and Imam Mohammad (abu hanifa students) view based on Ali, Azir bin Thabit, Abdullah bin Masood is the full siblings and consanguine siblings are not excluded by the paternal grandfather (this is majority view).
  7. Rule # 7: General Rule of male:female ratio: one male inherits equivalent of two portions of female (man:female ratio 2:1) of same level or below.

Group 1 for Residue: Descendants of the deceased: 

These include four (descendants):

  1. Sons
  2. Son’s son (however low in the chain)
  3. Daughter when accompanied by son
  4. Son’s daughter (however low in chain) when accompanied by son’s son of an equal or lower degree
  • After the fixed sharers (or Primary Heirs) have been allocated their inheritance, if there is anything left, then the residue is first distributed to descendants of the deceased.
    • General Rule still applies: one male inherits equivalent of two portions of female (man:female ratio 2:1)
    • Daughters share with the sons as residuary. Son’s son share with son’s daughters as residuary and so on.

Group 2 for Residue: Ascendants of the deceased: 

These include two (ascendants):

  1. Father
  2. True grandfather (however high in chain)
  • If there is no "Group 1: Descendant" heirs , then all residues devolves into "Group 2: Ascendants of the deceased".
  • Hanafi view: father/true grandfathers exclude full and consanguine brothers and sisters.

Group 3 for Residue: Descendants of the father: 

These include six (siblings):

  1. Full Brother
  2. Consanguine brother
  3. Full sister when she is not Primary Heir
  4. Consanguine sister when she is not Primary Heir
  5. Full brother’s son (however low in chain)
  6. Consanguine brother’s son (however low in chain)
  • If there is no "Group 1: Descendants" and "Group 2: Ascendants", then all residues then devolves into "Group 3: Descendants of the father".
    • General Rule still applies: one male inherits equivalent of two portions of female (man:female ratio 2:1)
    • Hanafi view: father/true grandfathers exclude full and consanguine brothers and sisters.
  • Other three madhab view: True grandfather inherits with the collaterals and this is majority opinion.
  • Full brother excludes Consanguine brother/sisters
  • Full sister inheriting as residuary excludes consanguine brother/sisters

The sequence of distribution is follows:

  1. First generation:
    • Full brother and full sister (when f/sister inheriting as residuary)
    • Consanguine brother and consanguine sister (when c/sister inheriting as residuary)
  2. Second generation:
    • Son of Full brother
    • Son of consanguine brother
  3. Third Generation:
    • Grandson through son of full brother
    • Grandson through son of Consanguine brother
  4. Fourth Generation:
    • Great grandson through son of full brother
    • Great grandson through son of Consanguine brother

Group 4 for Residue: Descendants of the grandfather: 

These include two groups (uncles and their descendants):

  1. Offspring of true grandfather (father’s father)
    • Paternal uncle
    • Male descendants of paternal uncle
  2. Offspring of true great grandfather (father’s father’s father)
    • Great paternal uncle
    • Male descendants of great paternal uncle
  • If there is no heir from first three groups (i.e Group 1: Descendants, Group 2: Ascendants, Group 3: Descendants of Father - Siblings), all residues then devolves into "Group 4: Descendants of the grandfather".

The sequence of distribution is follows:

  1. First generation:
    • First Paternal uncle
    • Consanguine Paternal uncle
  2. Second generation:
    • Full paternal uncle’s son
    • Consanguine paternal uncle’s son
  3. Third Generation:
    • Full paternal uncle’s son’s son
    • Consanguine paternal uncle’s son’s son
  4. Fourth Generation:
    • Full paternal uncle son’s son’s son
    • Consanguine paternal uncle’s son’s son’ son

B. Al-Asabat Sababiyyah (العصبات سببية)

Asabat Sababiyyah are following:

  1. By special reason (e.g. Mauwla al-itaq مولى العتاقة)
  2. By contract (Mawlaul-Mawala  مولى الموالاة)
  3. Distant kindred (dhawal-arham ذوالارحام)
  4. Acknowledged kinsman (Al-Muqirr Lahu المقرر له)
  5. Universal Legatee/tesatee (Al-Musa Lahu الموصي له)
  6. Public treasury (بيت المال)

a) Dhawul-Arham (ذو الرحام) - Distant kindred

  • It means “possessors of kinship”. This also referred to as uterine heirs.
  • These are all blood relatives of the deceased who are neither Primary Heirs (Ashabul-Furud) nor Residuaries (al-Asabat).
  • All issues through female relatives are distant kindred except those through the mother.
  • According to four Madhabs:
    • Majority of companions of the prophet (pbuh) hold that Dhawul-Arham are entitled to inherit.
    • Hanafi, Shafii andHanbali fiqh follows this view that Dhawul-Arham are entitled if:
      • Primary Heirs and Residuaries are not entitled to it
      • The only heir is husband/widow who is given his/her share and the residue goes to the Dhawul-Arham.
    • The view of Zaid bin Thabit (ra) was that Dhawul-Arham are not entitled to inherit, and any residue in absence of Primary Heirs/Residuaries goes to Bait-ul-mal. 
      • This was opinion of Imam Malik and Shafii. Later Shafii jurist were of opinion that since bait-ul-mal is not administered as per Shariah law, then Dhawul-arham take precedence over the baytul-mal.
Shares of Dhawul-Arham (ذو الرحام):
  1. Descendants of the deceased (who are excluded from residuaries). (Children of daughter(s)).
  2. Ascendants of the deceased (who are excluded from residuaries)
  3. Descendants (however low in chain) of the siblings of the deceased. (children of sister(s), daughter(s) of brothers, and son(s) of half sister on mother side etc)
  4. Descendants (however low in chain) of ascendants (uncles/aunts)

There are many details of rules relating to these groups and various opinions from different madhabs. We are briefly stating common rules:

Dhawul-Arham  Group 1: Descendants of the deceased:
  • They are grandchildren and their descendants who are neither Primary Heirs nor Residuaries. i.e
    • Son of Daughter, Daughter of Daughter (however low in chain)
  • They get first preference
  • General rules:
    • Male/female ration is 2:1
    • Nearer in degree excludes more remote
    • If claimants are of equal degree then descendants of the Primary Heirs or Residuaries take preference over descendants of distant kindred.
    • If claimants are of equal degree we use rule of Imam Abu Yusuf and divide equally amongst the claimant keep the male:female ratio.
Dhawul-Arham  Group 2: Ascendants of the deceased:
  • They are grandparents (that are not true/real grandparents)
  • General Rule
    • Near in degree eliminates the more remote applies
    • Rest are similar to group 1 rules.
Dhawul-Arham  Group 3: Descendants (however low in chain) of the siblings of the deceased:
  • These are offspring of brothers and sisters of the deceased. i.e
    • Nephews and nieces of the deceased. (son/daughter of brother/sister)
  • General Rule
    • Near in degree eliminates the more remote applies
    • Full blood exclude half blood through father applies
    • Further detail rules based on Imam Mohammad and Imam Abu Yusuf..
Dhawul-Arham  Group 4: Descendants of the Ascendants of the deceased:
  • These are all uncles/aunts who are not residuaries
  • Descendants (however low) of uncles/aunts who are not residuaries
  • All great uncle/aunt (uncle/aunts of parents) however high in chain, and their children however low in chain.
  • General Rule
    • If there is only one of this individual he takes who property. But if there are more, then one strongest comes first, provided he is from same line of relationship.
    • Near in degree eliminates the more remote applies
    • If power of relationship is same, Male get twice share as female

b) Mauwla al-itaq مولى العتاقة - By special reason 

  • Mauwla al-itaq >مولى العتاقة is master of a freed-Slave.
  • If freed-slave (manumitted slave) died and left no heirs by blood relation, then manumitter (master who freed the slave) is entitled to the residue.
  • This may not be relevant to modern times, as it deals with slave and master. Since slavery is no longer practice, this topic may not be relevant.

c) Mawla-ul-Mawala  مولى الموالاة  - Successor by contract 

  • If there no Dhawul-Arham (ذو الرحام) - Distant kindred, then state can be given to Mawla-ul-Mawala  مولى الموالاة  (successor by contract), if any.
  • The deceased must have made prior contract with Mawla and he/she must accept it.
    • There should be declaration (by deceased) and acceptance (By Mawla)
    • The person who make the declaration must not have no other legal heir (or blood relatives)
  • Such situation is unlikely to happen in modern times.

d) Al-Muqirr Lahu المقرر له - Acknowledged kinsman

  • If there is no heirs and no Mawla-ul-Mawala  مولى الموالاة  (successor by contract), then shares estate can be given to Al-Muqirr Lahu المقرر له - Acknowledged kinsman.
  • Al-Muqirr Lahu المقرر له is person of unknown descend but whose kinship has been acknowledged by the deceased person. Ofcoucse this situation only occurs when person is of unknown descend.
  • Al-Muqirr Lahu المقرر له inherits as residuary.
    • Al-Musa Lahu الموصي له - Universal Legatee/tesatee 
  • Al-Musa Lahu (الموصى له) is person whom the deceased has Willed/bequeathed the estate/property when there is no other heir.
  • The rules of max 1/3 (by will) do not apply as there is no other heir. Al-Musa Lahu (الموصى له) take whole estate.
    • Public treasury (بيت المال)
  • If there is none of above claimant, then estate/property of deceased is entered in to Public treasury (بيت المال).

 

FOOTNOTES
  1.  عَصَبَة  ( اسم ): قَرَابَةُ العَصَب , agnation ; blood ; blood relationship ; consanguinity
  2. Sahih al-Bukhari, Laws of Inheritance (Al-Faraa'id), Book 85, Hadith 9

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