Answered by Mufti Mohamed Umer Ibrahim
I have a question regarding the marriage contract and pre-nuptial requests or agreements. Can the wife or the wife’s family specify in the marriage contract that the wife should receive a certain financial sum or property etc if the husband should pass away while she is married to him (for reasons of security). I understood that this kind of issue is best covered in the Islamic will and completely voluntary, not a form of bribery, i.e. the bride will only marry the groom if he agrees to a kind of dowry or haqmar if he should pass away.
Wa alaik as salam,
The wife is entitled to receive 1/4 of the husband’s estate/assets in case of his death if he is not survived by children and 1/8 if he is survived by children. (See Sura AnNisa: 12)
The above will Islamically apply whether he has left behind a will or not.
The husband is obligated to give his wife enough to take care of her and the children’s basic needs according to his and her financial status. (See Sura At-Talaq: 7)
A certain amount may be stipulated for the husband to give his wife on a periodic basis with mutual consent at the time of marriage or any time after it and the husband will be legally obliged to pay that amount. If any payments have been missed, the wife is allowed to take that amount from her husband’s assets at the time of his death before distribution. (See Raddul Muhtar chapter on Nafaqah as given below)
A husband may also gift her a property or a certain amount of money for the sake of her security during his sound health without the intention of depriving his other heirs.
If it is stipulated in the way mentioned in the question i.e. after the death of the husband the wife will receive X amount, then this will fall under the category of an Islamic will, and an Islamic will can only be executed for non-heirs within 1/3 of the deceased’s assets balance after covering funeral costs and paying off debts. A wife being an heir is not entitled to any share in the will unless all heirs are of the age of puberty and they consent to it. Thus there are two possible case scenarios:
1) One of the heirs is a minor; she will only be entitled to the prescribed share that a wife is Islamically entitled to i.e. 1/4 if there are no children or 1/8 if there are children. In this case the wife will be entitled to her full share regardless of the stipulated X amount.
2) All heirs are major and consent to her having an extra share in the will on top of her prescribed share and the X amount is equivalent to or less than 1/3 of the assets’ balance; she will be eligible for the full X amount plus her prescribed share.
3) All heirs are major and consent and the X amount is greater than 1/3 but not greater than 1/3 plus the 1/8 she is entitled to; she will receive her full 1/8 and the remainder from within 1/3 of the assets’ balance before distribution.
4) All heirs are major and consent and the X amount is greater than 1/3 and 1/8 put together; she will receive the full 1/3 + her full 1/8 and the remaining amount will only be given to her if one or the rest of the heirs consent to giving up a portion of their share.
And only Allah Almighty knows best.
Sources:
Bukahri:1213;
Tirmidhy:2046
Raddul Muhtar: