CHAPTER 12

Inheritance

1. Historical Background and Legal Sources

Succession to the estate of the deceased "propositus" is governed by compulsory

rules laid down in the Quran. These rules constitute the doctrine of Faraiid, that
is, the Prescribed Portions, described by the Prophet as a major part of the
discipline of law. 1 The power to make a legacy is limited to one third of the
estate, the remaining two thirds to be distributed among heirs according to the
rules of Faraiid.
Although the whole set of rules may seem to fit in admirably, no principle
appears to the system and the rules have to be memorized without any guide
or clue unless they are approached historically and related to their formation in
their pre-Islamic customs. For instance, the first, and, in some respect, the most
important, group of heirs, the sharers (As-hab-ul-Furud) includes, among others,
the spouses, parents and uterine siblings, but the son is conspicuously excluded
therefrom. This can only be understood against the background of the customary
law of succession in the pre-Islamic society, the main characteristics of which
could be summed up as follows:
(i) Females and cognates were excluded from inheritance. In certain cases
women even constituted part of the estate. A stepson or brother took
possession of a dead man's widow or widows along with his goods and
chattels. 2 The Quran forbade this custom: "O ye who believe! It is not
lawful for you forcibly to inherit women." (4:19)
Similarly, male minors who were unable to carry arms were deprived of
any share in the estate.
(ii) The nearest adult male agnate or agnates succeeded to the entire estate of
the deceased. Male agnates who were equally distant to the propositus
shared together the estate per capita. 3
(iii) Descendants were preferred to ascendants, who in turn were preferred to
collaterals.
(iv) The adopted son, even if his real father was known, had the same right to
the estate as the real sons if he was able to carry arms.
(v) Mutual inheritance between two men was recognized through a contract of
alliance. The famous formula was for one of them to say to the other: "My
blood is your blood, my destruction is your destruction, you inherit me and

1 AI-Bardisi, Islamic Law of Inheritance and Wills, p. 13.

2 AI-Ghandour, Inheritance under Islam and the Law, p. 3.
3 Loe. cit.

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198 The Islamic Law of Personal Status

I inherit you, you pursue my blood feud and I pursue yours." 4

The Islamic Law of Inheritance has not entirely abolished the customary pre-
Islamic law, but rather introduced radical changes to it. The doctrine of shares
then becomes understandable once it is realized that the sharers consist of those
who are not entitled to succeed under the customary law, in the circumstances
in which they are granted the right to take their respective shares.
These innovations were not promulgated at once but in stages and in answer
to specific questions.
To start with, fraternization between the Muhajireen (migrants from Mecca)
and the Ansar (the citizens of Medina) entitled each to inherit from the other.
This provision was abrogated after the conquest of Mecca under the two Quranic
verses: "And those who accept faith subsequently and left their homes and strove
along with you, they are of you; but kindred by blood have prior rights against
each other in the ordinance of God." (8:75) and "Blood relations among each
other have closer ties in the ordinance of God than believers and Muhajireen."
(33:6) Earlier, bonds of brotherhood were temporarily approved to establish the
right of inheritance, under the Quranic ruling: "And unto each we have appointed
heirs of that which parents and near kindred leave; and as for those with whom
your right hands have made a covenant, give them their due." ( 12:33)
Later, inheritance through adoption was abrogated, as an inevitable conse-
quence of the Quranic abolition of the whole institution of adoption.
The right of inheritance for the kindred was first established through the will;
"It is prescribed for you, when one of you approacheth death, if he leave wealth,
that he will bequeath unto parents and near relatives according to decent custom.
This is due from fear of God. And who so changeth the bequest after hearing
it, the sin thereof is only upon those who change it." (2:180-181) This ruling
was the first parting from the customary law which denied women and children
the right to inherit, as parents include both father and mother, and near relatives
comprise both children and adults.
The stage was now set for the final phase of legislation on inheritance, in the
famous verses of Sura Nisaa. The principle covering females and males is laid
down in verse 7: "Unto the men belongeth a share of that which parents and
near kindred leave and unto the women a share of that which parents and near
kindred leave, whether it be little or much - a legal determinate share." Three
verses later, the detailed distribution of the shares:

"Allah chargeth you concerning your children: to the male the equivalent
of the portion of two females, and if there be women more than two, then
theirs is two-thirds of the inheritance, and if there be one then the half. And
to his parents a sixth share of the inheritance to each if he left children; and
if he left no children and his parents are his heirs, then to his mother
appertaineth the third; and if he have brethren, then to his mother apper-
taineth the sixth, after any legacy he may have bequeathed, or debt. Your
parents or your children: Ye know not which of them is nearer unto you in
usefulness. It is an injunction from Allah. Lo! Allah is All-Knowing, All-
Wise.

4 Madkoor, Succession under the Islamic Jurisprudence, p. 16.