Inheritance

Surah 4 (Al-Nisa/Women): 11

Allah enjoineth you in the matter of your children;

the male will have as much as the portion of two females,

but if they be females more than two, then they will have two-thirds of that which he hath left, and if only one, she will have a half;

and as far as his parents, each of the twain shall have a sixth of that which he hath left if he have a child,

but if he hath no child and his parents be his heirs, then his mother shall have a third;

but if he have brothers, then his mother shall have a sixth: all after paying a bequest he may have bequeathed or a debt.

Your fathers and your sons – ye know not which of them is higher unto you in benefit: an ordinance this from Allah, verily Allah is Knowing, Wise.

[‘The Glorious Qur’an’, Abdul Majid Daryabadi]

In {2.180} bequeathing one’s property amongst ‘parents and kinsfolk, in an honourable way’ is ‘an obligation upon the reverent.’ {2.240} requires such bequests to include at least a year’s subsistence to the testator’s widow or widows, and {5.106-108} specifies who should witness such bequests: ‘two just men amongst you‘, or, ‘if it is discovered that the two of them are guilty of sin’, then two others ‘from those most entitled as claimants’.

 

However, {4.11-12}, introduced by {4.7-9} and at a later time supplemented by {4.176} (clearly tagged onto the end of Surah 4, and traditionally said to be the last verse of the Qur’an to be announced) prescribe a rigid mathematical formula for dividing an estate between relatives. {4.11 & 12} are expressed as being subject to ‘any bequests that may have been bequeathed’ but this limits rather than removes the conflict between the encouragement to make bequests in Surahs 2 and 5 and the regime of ‘ordained shares’ of Surah 4. This is because God’s command to allocate an estate according to certain shares He had ordained, would be hollowed of any meaning if it were to be applied only to the residual estate after the major assets were disposed of by a will. {4.33} may hint at a recognition of the inconsistency:

{4.33} To each We have appointed heirs for what parents and kinsfolk leave. Those to whom you have given your oath, give them their share.

Truly God is Witness over all things

That is to say, testators are instructed to bequeath only a ‘share’ of the estate to non-relatives, to avoid denying family heirs their appointed due. However, a hadith was required to reconcile the two regimes in a more satisfactory manner, and one was duly forthcoming , recording that Muhammad permitted a maximum of one third of an estate to be bequeathed, with the balance to be distributed according to the divinely ordained shares.

{4.11-12} and {4.176} between them create four rules:

1. A husband should receive a quarter of his deceased wife’s estate if there are living children of the marriage, or a half if there are not. A similar provision applies to the wife of a deceased husband but with the aforesaid shares reduced to an eighth and a quarter.

 

2. If the deceased leaves children, then the deceased’s parents should each inherit one sixth of the estate; but if there are no children and the deceased has no brothers, this share, for the mother, increases to a third.

 

3. After the above fixed shares have been allocated, the residual estate should be divided between the deceased’s children so that sons receive twice as much as daughters, but if the deceased person leaves only daughters then those daughters should inherit only two thirds of the estate in equal shares; if there is a single daughter, she receives only a half of the estate;

 

4. If there are no descendant heirs or parents, the deceased’s siblings will share a third of the estate, brothers taking twice the amount of sisters.

 

This regime makes no allowance for individual circumstances, for example to reflect an individual’s needs or their conduct towards the deceased during the latter’s lifetime. The formula is also open to purely technical criticisms. It does not, for example, address the question whether, in the event that a deceased’s child has predeceased them, that child’s children (i.e. the deceased’s grandchildren) should receive the share that would otherwise have gone to their parent. Nor does it identify the beneficiary of the residual estate where a deceased leaves either only daughters, or where the deceased leaves no children, parents or siblings. Awkwardly, there are situations in which the ordained shares can aggregate to more than the totality of the estate. The process is also complicated, and likely to be especially so within the elaborate family structures that must inevitably result from the practices of polygyny and consanguineous marriages. This complexity is often credited as having provided the incentive for the Muslim world’s development of probably its greatest contribution to secular learning: algebra.

 

To a modern audience, the most conspicuous aspect of the ordained shares formula is its inequality between males and females. Under {4.11-12 & 176}, a daughter receives half as much as a son would, a wife half as much as her husband would have done, and where a deceased person leaves no children, a sister half as much as her brother. {4.11} and {4.176} each use the same phrase, ‘unto the male, a share equal to that of two females’ in order to emphasise the consistent principle. This unequal distribution is traditionally justified on the basis that throughout her life a woman is usually provided for by either her biological family or by her husband in accordance with the principle that ‘men are the protectors and maintainers of women’ ({4.34} 〈59.〉) and that a woman will typically acquire a substantial asset from her husband upon their marriage in the form of the nikah 〈57.〉 both of which factors will more than compensate her for a reduced inheritance share. As such the inheritance and marriage laws should be seen as operating together. However, it must also be noted that the Quranic scheme makes no allowance for women who choose not to marry, or who are unable to find a husband, or who marry husbands who, for any reason, may be unable to provide sufficient maintenance for them to compensate for the lesser inheritance that she would have received from an equal share in the estate of a wealthy family member.

 

As noted above 〈57.〉 the widows of the deceased do not form part of his estate.