Inheritance Question – Complicated

QuestionsCategory: GeneralInheritance Question – Complicated
Anonymous asked 8 months ago

Assalamualaikum. I would like to ask you some questions regarding inheritance.

  • My mother passed away in 2011 and she had lot of gold and left 8 children (2 sons and 6 daughters) all were married that time except me.
    • She also had 3 sisters and 1 brother. Only 2 sisters are alive currently.
  • When I got married my father instead of buying new jewelry, he gifted me a big portion of my mother’s jewelry in my wedding.
    • In my mother’s lifetime, my father told her the jewelry belonged to her.
  • Recently my father passed away less than a month back so now the will and inheritance is being discussed.
    • When he passed away, he was remarried and had another daughter from the second wife.
      • My stepmother has a lot of my mother’s jewelry, but my father specifically told her it does not belong to her.
      • When he passed away, the only relatives he left behind were his wife, 7 daughters, and two sons.
    • My elder siblings are finding about what to do with his property.
    • And I came across this: https://islamqa.info/en/answers/145657/inheritance-of-properties
      • So I am wondering if I should give back my jewelry and let it be redivided according to Islamic law because that’s what I understand from this link.
    • My siblings are okay with my father’s decision to give me the jewelry but after reading the matter in the link above I want to know what I should do.
    • The only thing that my mother had was gold jewelry. She did not leave anything else behind.
1 Answers
Mufti Wahaaj Staff answered 8 months ago

بسم الله الرحمٰن الرحيم

الجواب حامداً ومصلياً

Note: The word estate refers to all of the things a deceased person leaves behind. In the context of this question, the vast majority of the estate refers to gold jewelry. However, the estate includes all of the deceased’s possessions, even things that are commonly overlooked such as clothing and utensils.
Disclaimer: The answers given are based on the information provided in the question.
Your question has many parts. They can be summarized as:

  1. What is the proper method of the distribution of your mother’s estate?
  2. Were your father’s actions in holding onto all of your deceased mother’s gold and then giving you a large portion of it at the time of your marriage, correct?
  3. If the distribution of your mother’s estate were not handled properly, would you have to return the jewelry you received at the time of your wedding?
  4. What is the proper method of distributing your father’s estate?
  5. What right does your stepmother have to the gold that your father allowed her to use?

Before moving on to your questions:

  1. We commend you in your honesty in trying to ensure that each of your siblings receives their proper share of inheritance.

Immediately after the āyahs in which Allāh explains the distribution of inheritance, He ﷻ says:
{تِلْكَ حُدُودُ اللَّهِ ۚ وَمَن يُطِعِ اللَّهَ وَرَسُولَهُ يُدْخِلْهُ جَنَّاتٍ تَجْرِي مِن تَحْتِهَا الْأَنْهَارُ خَالِدِينَ فِيهَا ۚ وَذَٰلِكَ الْفَوْزُ الْعَظِيمُ. وَمَن يَعْصِ اللَّهَ وَرَسُولَهُ وَيَتَعَدَّ حُدُودَهُ يُدْخِلْهُ نَارًا خَالِدًا فِيهَا وَلَهُ عَذَابٌ مُّهِينٌ} سورة النساء: ١٣-١٤
“These are the bounds set by Allah: Allah will admit those who obey Him and His Messenger to Gardens graced with flowing streams, and there they will stay–that is the supreme triumph! But those who disobey Allah and His Messenger and overstep His limits will be consigned by Allah to the Fire, and there they will stay– a humiliating torment awaits them!”

2. It should be noted that the following process should be followed when a person passes away:

Process to be followed regarding a deceased’s wealth: In the case of an individual passing away, the following steps will be taken. This particular order must be followed: 1

  1. Funeral expenses will be borne by the estate (this includes shrouding and burial).
    • Note: It is permissible for someone to volunteer to fully or partially pay for the funeral expenses (includes shrouding and burial). Whatever expenses are not covered by others will be borne by the estate.
  2. The deceased’s debts will be paid off.
  3. If the deceased left a bequest (waṣiyyah), it will be executed in up to one-third2 of the remaining estate after steps 1 and 2.
  • Note: The waṣiyyah cannot be made to any direct inheritors of the estate.3

Question 1: What is the proper method of the distribution of your mother’s estate?
Answer: In the scenario that a deceased is survived by her husband, 5 daughters, 2 sons, 3 sisters and 2 brothers, after steps 1-3 (mentioned above), her estate will be divided into 40 equal shares (the estate includes all of the deceased’s possessions, even things that are commonly overlooked such as clothing and utensils).

  • Her husband will receive 10 shares. 4
  • Each son will receive 6 shares. 5
  • Each daughter will receive 3 shares. 5
  • Because siblings do not inherit when sons of the deceased are alive, the brothers and sisters will not have a share of the inheritance. 6

Distribution of Mother’s Estate (Based on the Question as Received)

Total Shares: 40

  • Husband: 10 shares: 25%
  • Son 1: 6 shares: 15%
  • Son 2: 6 shares: 15%
  • Daughter 1: 3 shares: 7.5%
  • Daughter 2: 3 shares: 7.5%
  • Daughter 3: 3 shares: 7.5%
  • Daughter 4: 3 shares: 7.5%
  • Daughter 5: 3 shares: 7.5%
  • Daughter 6: 3 shares: 7.5%
  • Brother: 0 shares: 0%
  • Sister: 0 shares: 0%

 
Question 2: Were your father’s actions in holding onto all your deceased mother’s gold and then giving you a large portion it at the time of your marriage, correct?

Answer: Allāh ﷻ has explained how inheritance should be distributed amongst heirs. For anyone to take more than the share allocated to them by Allah ﷻ and to withhold inheritance shares from their rightful owners is an extremely serious matter that Rasūlullāh ﷺ has warned against.7 Your mother’s inheritance should have been distributed as explained in the table from Question 1. It is not correct for one person to hold on to her entire estate.

Additionally, unless your siblings expressly consented to your father giving you the gold at the time of your marriage – a large portion of which, according to the Sharīʿah is rightfully theirs – their silence cannot be assumed to be consent.8 However, if they now happily and willingly agree to give you from their shares of the inheritance (in other words, they allow you to keep whatever you received from your father at the time of your marriage), it will be permissible, and the gold will belong to you.

Question 3: If the distribution of your mother’s estate were not handled properly, would you have to return the jewelry you received at the time of your wedding?

Answer: Based on the table in Question 1, you and your father collectively owned 13/40 of your mother’s estate (you owned 3 of 40 shares and your father owned 10 of 40). It is necessary to determine how much of your mother’s gold was given to you at the time of your marriage.

  • If the amount given to you was equal to or less than 3/40 of the total amount of gold, it will be considered your portion of the inheritance.
  • If the amount given to you was greater than 3/40 but less than 13/40 of the total amount of the gold, the first 3/40 will be your portion of the inheritance and the amount above that will be considered a gift to you from your father from his portion of the inheritance. The remaining amount would be added to his estate and be distributed with the rest of his estate.
    • For example, if the amount given to you at the time of your marriage was 6/40 of the total amount of gold, the 3/40 would be your portion of the inheritance and the second 3/40 would be a gift to you from your father from his portion of the inheritance. Your father would still have 7 of 40 shares of the gold that he received in inheritance in his possession. This amount would be added to his estate at the time of his death.
  • If the amount given to you was greater than 13/40 of the total amount of the gold, the first 3/40 would be your share of the inheritance and the remainder of the 13/40 (10 shares) will be considered a gift to you from your father from his share of the inheritance (which was 10 out of 40 shares). In other words, he gifted you the entire amount that he inherited from your mother’s estate. The remaining amount must be returned and distributed amongst your other siblings that were alive at the time of your mother’s death (your half-sister is not included).
    • For example, the amount of gold your father gave you at the time of your wedding was equal to one-half (20 out of 40 shares) of the entire amount of gold. You would keep 13 shares and return 7 to your siblings to split amongst themselves at a 2:1 proportion between males and females.

Note: The pieces of jewelry that you keep and those you return should be based on mutual agreement amongst you and your siblings.9 Because this whole effort is being undertaken for the pleasure of Allāh ﷻ, every effort should be made to avoid conflict, confrontation, and disagreement during this process.
 
 
Question 4: What is the proper method of distributing your father’s estate?

Answer: In the scenario that a deceased is survived by a wife, 2 sons and 7 daughters, after steps 1-3 (mentioned in process to be followed regarding a deceased’s wealth), his estate will be divided into 88 equal shares (the estate includes all of the deceased’s possessions, even things that are commonly overlooked such as clothing and utensils).

  • His wife will receive 11 shares.4
  • Each son will receive 14 shares.5
  • Each daughter will receive 7 shares.5

Distribution of Father’s Estate (Based on the Question as Received)

Total Shares: 88

  • Wife: 11 shares: 12.5%
  • Son 1: 14 shares: 15.9%
  • Son 2: 14 shares: 15.9%
  • Daughter 1: 7 shares: 7.95%
  • Daughter 2: 7 shares: 7.95%
  • Daughter 3: 7 shares: 7.95%
  • Daughter 4: 7 shares: 7.95%
  • Daughter 5: 7 shares: 7.95%
  • Daughter 6: 7 shares: 7.95%
  • Daughter 7: 7 shares: 7.95%

 
Question 5: What right does your stepmother have to the gold that your father allowed her to use?

Answer: As mentioned in Question 3, if the amount of gold given to you was less than 3/40 of the total amount of your mother’s gold, your father’s remaining shares will be added to his estate. Your stepmother and her daughter will inherit from it in accordance with the table from Question 4.
If, however, the amount given to you exceeded 13/40 of the total amount of your mother’s estate, your father would have gifted the entire amount he inherited from your mother to you. Therefore, the only rightful owners of the gold are you and your siblings that were alive at the time of your mother’s death. Your stepmother and half-sister have no right to it. The gold that your stepmother has should be returned and distributed amongst the remainder of your siblings according to the table from Question 1. You will not have any portion since you received your shares at the time of your wedding. However, if your siblings willingly and happily allow your stepmother to keep the gold that your father was allowing her to use, it is permissible, and it will become hers.

If the amount of gold you received at your wedding was less than 13/40 of your mother’s estate, then the difference of 13/40 and the amount you received would have to be distributed with your father’s estate. The portion that belongs to your half-sister will remain hers and not her mother’s. You and your siblings are free to give your portions of your father’s estate to your stepmother if you like.

Summary

There are a few scenarios:

  • If the amount of your mother’s gold given to you at the time of your marriage exceeded 13/40 shares:
    • You: Keep 13/40 of your mother’s estate
    • Full Siblings: The amount above 13/40 must be returned to them to divided according to Sharīʿ Laws of Inheritance
  • If the amount of your mother’s gold given to you at the time of your marriage exceeded was between 3/40 and 13/40 shares:
    • You: Keep what you were given at marriage
    • You, Full Siblings, Half Sibling, Stepmother: The difference between 13/40 and the amount given divided according to Sharīʿ Laws of Inheritance
  • If the amount of your mother’s gold given to you at the time of your marriage exceeded was less than 3/40 shares:
    • You: Keep what you received along with the difference between 3/40 and the amount received
    • You, Full Siblings, Half Sibling, Stepmother:  Divide 10/40 of your mother’s estate (after your father’s death)
    • Full Siblings: Divide the remaining 27/40 of your mother’s estate according to Sharīʿ Laws of Inheritance.

 

  1. If your siblings willingly and happily allow you to keep the gold you received at the time of your marriage, it is permissible, and it will belong to you.
  2. If they do not, it is necessary to determine the amount of gold given to you at the time of your marriage.
    1. If it exceeded one-third of the total amount of gold, the excess amount must be given to your siblings to divide amongst themselves.
    2. If it exceeded one-twelfth of the total amount of gold, but not one-third, the difference between one-third and the amount given will be divided by you, your full siblings, half sibling, and stepmother.
    3. If the amount was less than one-twelfth of the total amount of gold, you keep whatever you received. In addition to this, the difference between one-twelfth and the amount you received should be given to you. One-fourth of the total amount of gold belonged to your father. The remaining two-thirds would be divided amongst your siblings at a 2:1 ratio between males and females.
      • In this case, when your father passed away, the gold that he owned (one-fourth of your deceased mother’s gold) would be added to his estate and divided by you, your full siblings, half sibling, and stepmother as outlined in Question 4.

والله تعالى أعلم وعلمه أتم وبه التوفيق
And Allāh Taʿālā Knows Best

Muftī Mohammed Wahaajuddin bin Salauddin
(May Allāh forgive him and his parents)

[1]

قال علمائنا رحمهم الله: تتعلق بتركة الميت حقوق أربعة مرتبة : الأول: يبدأ بتكفينه و تجهيزه من غير تبذير ولا تقتير ، ثم تقضي ديونه من جميع ما بقي من ماله، ثم تنفذ وصاياه من ثلث ما بقي بعد الدين، ثم يقسم الباقي بين ورثته بالكتاب و السنة و إجماع الأمة (السراجي في الميراث ص٥-٨، للشيخ سراج الدين محمد السجاوندي، مكتبة البشرى كراتشي، الطبعة الثانية، ٢٠٠٩)

[2]

عن عامر بن سعد عن أبيه رضي الله عنه قال مرضت فعادني النبي ﷺ … قلت أريد أن أوصي وإنما لي ابنة فقلت أوصي بالنصف. قال: النصف كثير. قلت فالثلث. قال الثلث والثلث كثير أو كبير. (صحيح البخاري،كتاب الوصايا باب الوصية باالثلث ج١ ص٧٤٢ ، للإمام الحافظ أبي عبد الله محمد بن إسماعيل البخاري، مطبوعة الألطاف، كراتشي، الطبعة الأولى، ١٤٢٩/٢٠٠٨) و روى نحوه البخاري ومسلم وابن ماجه والنسائي عن ابن عباس رضي الله عنهما

[3]

عن عمرو بن خارجة أن النبي ﷺ خطبهم وهو على راحلته… قال: إن الله قسم لكل وارث نصيبه من الميراث فلا يجوز لوارث وصية (سنن ابن ماجه، أبواب الوصايا ص ٣١٩، للإمام أبي عبد الله محمد بن يزيد القزويني ابن ماجه، مكتبة رحمانية ، لاهور) وروى نسائي نحوه عن ابن خارجة رضي الله عنه

[4]

قال الله تعالى: {وَلَكُمْ نِصْفُ مَا تَرَكَ أَزْوَاجُكُمْ إِن لَّمْ يَكُن لَّهُنَّ وَلَدٌ ۚ فَإِن كَانَ لَهُنَّ وَلَدٌ فَلَكُمُ الرُّبُعُ مِمَّا تَرَكْنَ ۚ مِن بَعْدِ وَصِيَّةٍ يُوصِينَ بِهَا أَوْ دَيْنٍ ۚ وَلَهُنَّ الرُّبُعُ مِمَّا تَرَكْتُمْ إِن لَّمْ يَكُن لَّكُمْ وَلَدٌ ۚ فَإِن كَانَ لَكُمْ وَلَدٌ فَلَهُنَّ الثُّمُنُ مِمَّا تَرَكْتُم ۚ مِّن بَعْدِ وَصِيَّةٍ تُوصُونَ بِهَا أَوْ دَيْنٍ} (سورة النساء: ١٢)
[5]

قال الله تعالى: {يُوصِيكُمُ اللَّهُ فِي أَوْلَادِكُمْ ۖ لِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ} (سورة النساء: ١١)

[6]

الأخوات كلهن حجبن بهؤلاء المذكورين و هم الإبن و ابن الإبن و إن سفل و الأب و الجد و إن علا و كذا الإخوة يحجبون بهم لأن ميراثهم مشروط بالكلالة (تبيين الحقائق شرح كنز الدقائق ج٦ ص٢٣٧، للعلامة فخر الدين عثمان بن علي الزيلعي، مكتبة امدادية ملتان، الطبعة الأولى، ١٣١٥)
و بنو الأعيان و العلات كلهم يسقطون بالإبن و ابن الإبن و إن سفل (السراجي في الميراث ص٢٨، للشيخ سراج الدين محمد السجاوندي، مكتبة البشرى كراتشي، الطبعة الثانية، ٢٠٠٩)

[7]

عن أَنَسِ بْنِ مَالِكٍ، قَالَ قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم ‏ “‏ مَنْ فَرَّ مِنْ مِيرَاثِ وَارِثِهِ قَطَعَ اللَّهُ مِيرَاثَهُ مِنَ الْجَنَّةِ يَوْمَ الْقِيَامَةِ (ابن ماجه)

[8]

في الأشباه: القاعدة الثانية عشر: لا ينسب إلى ساكت قول (شرح الأشباه والنظائر للحموي، ١/٣٨٣، إدارة القرآن واعلوم الإسلمية

[9]

(وإن أخرج الورثة أحدهم عن عرض) هي التركة (أو) أخرجوه عن (عقار) هي التركة (بمال) أعطوه له (أو) أخرجوه (عن أحد النقدين بالآخر) أي عن ذهب هو التركة بفضة دفعوها إليه أو عن فضة – هي التركة – بذهب دفعوه إليه (أو عنهما) أي عن النقدين (بهما) أي بالنقدين بأن كان في التركة دراهم ودنانير، وبدل الصلح أيضا دراهم ودنانير (صح) هذا الصلح في الوجوه كلها (قل البدل أو كثر) (مجمع الأنهر، كتاب الصلح، ٣/٤٣٨، دار الكتب العلمية، الطبعة الثانية)

(ومن صالح من الغرماء أو الورثة على شيء من التركة فاطرحه كأن لم يكن، ثم اقسم الباقي على سهام الباقين) مثاله: زوج وأم وعم صالح الزوج عن نصيبه من التركة على ما في ذمته من المهر اطرحه كأنها ماتت عن أم وعم فاقسم التركة بينهما للأم الثلث والباقي للعم (الاختيار، كتاب الفرائض، فصل فيمن ٔالح على شيء من التركة، ٢/٥٥٤، مكتبة العمرية)