What Are the Leeways in Dividing a Family Home After the Parents’ Death?
Answered by Shaykh Shuaib Ally
Question: Assalam alaikum,
My family lives with my parent in the main family home. Can we remain there following the death of the parent, and only sell it when we want? Do we have to immediately give out the shares to the rest of the inheritors?
Can the parent give the house to a single inheritor?
Answer: Assalāmu ʿalaykum,
I hope you and your family are doing well.
Promptly Apportioning the Estate of the Deceased
Generally speaking, one should strive to properly apportion the estate as soon as possible after the deceased person’s death. This is because as soon as a person passes away, their wealth transfers from their own to that of the inheritors.
Problems arising from not Immediately Apportioning Property
Aside from being sinful, failing to do so leads to irreparable broken feelings between the inheritors: those who have held on to the estate unlawfully, and those who have had their financial rights withheld from them.
It also leads to problems related to the legal inheritors, such as some of the inheritors themselves passing away, or other inheritors being added to the picture, such as children. This further complicates the inheritance division, to the extent that people often choose to simply never apportion it once it has reached this intractable stage.
Dividing the Estate based on Divine Law
One must also apportion the estate in a manner prescribed by law, and not try to lay claim to a larger portion than they have lawful claim to, for whatever reason they may find compelling. The Qur’an, knowing that people often fail to do so, says: “Do not covet what God has given to some of you more than others” [Qur’an, 4.32], in the context of dealing fairly with inheritance and monetary rights.
Can I Stay in my Parent’s House Following their Death?
Following a person’s death, as indicated above, their estate, including their house, effectively transfers from their property to that of their inheritors.
Those who are currently living in the house simply do not have any greater legal right to the property than the rest of the inheritors. The house, even if they are living in it, is not their property.
This is the case even if those living in the house are not of financial means. That is because the financial state of an inheritor(s) has nothing to do with how much of an inheritance share they can lay claim to.
What Should Happen to the Family Home?
The concept of a main family home is not a recognized legal concept. It is considered property like the rest of the estate. It cannot be held on to against the wishes of the other inheritors by virtue of it being ‘the family home’.
The rest of the inheritors are immediately legally entitled to their share of the estate, including the home. This is often most effectively accomplished by the property being sold and divided up amongst the inheritors.
Any other solution amicable to all of those who have a legal right to a share is also possible, such as one inheritor taking the property and compensating the rest in an agreed upon manner, immediately or over a period.
If all of the other inheritors do not agree, they are, by default, immediately legally entitled to their share.
Can a Person Decide what Happens to their Property after their Death?
A person’s wishes over who receives part of their estate after their death is not legally recognized. The estate as a whole is divided up, and each inheritor can do as they please with it. The wishes of the deceased are immaterial.
Can Parents Transfer the Estate to a Single Inheritor?
Transferring significant parts of the estate to a single inheritor by a parent, in an attempt to prevent the rest of the inheritors from their share, is disliked. According to some scholars, simply giving gifts exclusively to some children over others, without just cause, is impermissible.
The Prophet, peace and blessings of God be upon him, was asked to witness a person’s gift to only one of his sons. He refused to do so, calling it injustice, saying, “Fear Allah and be fair to all of your children” [Bukhari, Muslim].
Aside from its legal designation, transferring significant parts of the estate to a single inheritor with the intention of preventing the others from inheriting is blameworthy and extremely destructive behavior, possibly leading to the rest of the inheritors resenting the parents, even after their death, for effectively cutting them out of the inheritance.
The most amicable solution in such matters is to promptly apportion the estate upon the deceased’s death according to the shares set out in the law.