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Inheritance Practices Which are Not Part of Islām

بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ
 

Here is a list, not exhaustive, of some inheritance practices found in other religions which are not part of Islāmic law.

 

 1 Birthright 

There is no birthright in Islāmic Inheritance Law. Birthright  implies an individual acquire ownership at birth, he becomes a coparcenor in joint property from time of birth. In Islām an heir becomes the owner of his quantum share of the inheritance upon death of an individual from whom he inherits. 

 

2. Rule of Primogeniture

Islāmic inheritance law doe not recognise the rule of primogeniture whereby the first born son has more rights to inheritance than other children. Primogeniture is found in traditional Jewish law whereby first-born son (not to be confused with the eldest son) receives a double portion of the inheritance.

 

3. Excluding Daughters

The inheritance share of the daughter is mentioned in the Qur'an, therefore, she cannot be excluded from her inheritance rights.

In some Muslim communities a form of primogeniture is practiced in a manner to exclude daughters from inheritance. In some Jammu and Kashmir communities a daughter can only succeed in the absence of male agnate heirs. In some Gujas and Bakarwal communities daughters are excluded from inheriting.

 

4. Ancestral and Acquired property

In Islāmic inheritance Law ancesteral and acquired property is treated the same.

 

5. Joint Property Ownership

Islāmic law does not have concept of joint tenancy as found in English law nor coparcenership as found in Hindu law.

Under English law each joint tenant in a joint tenancy agreement  has ownership over the whole of the joint property. This kind of agreement typically includes the right of survivourship, wherein ownership automatically transfers to the surviving joint tenant(s) upon the death of one owner, precluding the ability to bequeath one's share via a Will. From an Islāmic standpoint, joint owners should hold property under a tenants in common agreement, ensuring each owner is aware of his/ her specific share in the joint property. This enables the passing of one's share to one's heirs.

 

6. Joint Family/ Coparcenary

In Islām there is no concept of "joint family" with a common male ancestor as found in Hindu law. 

 

7. Disinheriting an heir

In Islām a legal heir cannot be disinherited. The right to inherit has been decreed by Allāh () so no Muslim has the right to disinherit a legal heir.

 

8. Apostate

Under traditional Islāmic law a Muslim individual who leaves Islām does not inherit from his Muslim relatives.  However, under the Indian Caste Disabilities Removal Act 1850 such an individual has the right to inherit. This Act applies to converts only, which means if the Muslim father of a Muslim individual leaves Islām then the Muslim individual does not have a right to inherit.

 

9. Rule of Representation

Under traditional Islāmic law there is no provision for the rule of representation as found in English law, Hindu law and Roman law. So in traditional Islāmic law an orphaned grandchild does not inherit in the presence of a surviving son. In English law of intestacy any children of the deceased who have already died, then their share of the estate will pass to their own children, the grandchildren of the deceased, equally.

In Pakistan section 4 of the Muslim Family Laws Ordinance of 1961, states: "In the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stirpes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive."

 

10. Unborn Child

In most legal systems an unborn child does not have a right to inherit. Under traditional Islāmic law an unborn child does have inheritance rights providing he/ she is born alive within the maximum gestation period allowed under Islāmic law.

 

11. Illegitimate and Adopted Child

In English law an illegitimate child and a legally adopted child inherit in a similar manner to a legitimate and biological child. In Islāmic law an illegitimate child and an adopted child do not have a right to inherit. In Sunni Islāmic law the bar to inherit is only applicable to the paternal side (father and his relatives). In Shia Islāmic law the bar to inherit is applied to both the maternal and paternal sides.

 

12. The Commorientes Rule

Under English law, if two individuals die simultaneously and there is no clear evidence to determine who died first, the older person is deemed to have survived the younger person.  Under Islāmic law the two individuals will not inherit from each other (majority view of the madhāhib).

 

12. Wealth Acquired by Illegitimate Means

Wealth obtained through illegitimate means, such as the sale of alcohol, gambling, usury, theft, fraud, deceit, extortion, or breach of trust, is not considered part of the deceased's estate. The consensus among scholars from the four schools of jurisprudence is that death does not sanctify unlawfully acquired wealth; instead, it must be returned to its rightful owners. If the original owner cannot be determined, the unlawfully acquired assets should be donated to charity on behalf of the legitimate owner(s). This opinion is also supported by Ibn Taymiyyah ().

 

 

Dr. A. Hussain, Ramadan 1445