Assalamu Alaikum Warahmatullahi Wabarakatuhu,
Respected Mufti Saheb, I pray all is well Insha’Allah. Recently, we had a family approach us regarding certain inheritance issues after the passing of the husband/father. Hereunder, I will explain the current situation and the family’s concerns. Your input and assistance in this matter will be greatly appreciated.
The husband/father has passed leaving behind a wife, three daughters and one son. Over the years, the deceased invested in various projects and properties. According to the family, the deceased’s wife was a co-signer on almost all contracts. However, the wife has always been a housewife and as a result, it appears that she didn’t have any monetary contributions in the investments. When the deceased was still alive, a will was constructed in accordance to the law of the land whereby it was decided that if the husband has to pass prior to the wife, then she will become the absolute owner of all the estate. Conversely, if the wife has the pass prior to the husband, he will be come the sole owner of the estate. And in the rare occurrence of them passing together, the four children will inherit the estate equally.
The deceased passed away two years ago and since then, the entire estate has been managed by the wife/mother in accordance to the will. Now, a member of the family is seeking their share of the inheritance. Hence, the family has the following questions:
a. From an Islamic perspective, is the wife/mother a rightful owner of the entire estate bearing in mind that she was a co-signer on all contracts?
b. After all the expenses related to the properties are paid, the wife/mother saves the remainder for future needs. Is she allowed to do this or is she required to divide it among the children?
c. If she is not the rightful owner of the estate from an Islamic perspective, how should it be divided among the inheritors?
Jazakallahu khayran
Wassalam
Answer
Wa’alaykum as Salām wa rahmatullāhi wa barakātuhu,
- Under the assumption that the deceased was not survived by any parent, the rightful owners of the estate are his wife, one son and three daughters according to their proportionate shares.
- Any amounts accrued by the estate will be the entitlement of all the heirs according to their proportionate shares.
- After the settlement of the deceased’s burial expenses and debts (if any) and, the implementation of 1/3 of the residue for bequests made with regard to charity and religious liabilities; the net estate should be apportioned into 40 shares to devolve upon the surviving heirs as follows:
Wife – 5 shares
Son – 14 shares
Daughter 1 – 7 shares
Daughter 2 – 7 shares
Daughter 3 – 7 shares
It is also important to note the following:
- The wife being a co-signer does not necessitate ownership in her favour.
- The clause in the will which directs that in the event of either of the spouse’s demise the surviving heir will be the sole heir of the estate, is contrary to the Islāmic Law of Succession since there are other heirs to the estate as mentioned above.
- The heirs may arrange a private redistribution to ensure that the estate is wound up according to the Islāmic Law of Succession.
- Whilst the heirs may each lay claim to their proportionate shares of the estate, they may not lay claim to what may have been ‘a potential loss of income’.
And Allaah Ta’aala knows best
Wassalaam,
Ismail Moosa (Mufti)