INHERITANCE

Batoota — Sun, 11 May 2014 17:02:20 +0000

INHERITANCE. The Islamic law of inheritance, mirdth, constitutes the single most distinctive and complicated part of shari`ah law. It is particularly closely tied to the text of revelation: the Qur’an contains more extensive and specific rules on inheritance than on any other subject. For this reason, it is the part of shart`ah law least affected by contemporary reforms, most Muslim countries having essayed only minor adjustments in the twentieth century. It is also one of the topics on which Sunni and Shi`i law most sharply diverge, as the two are based on incompatible premises.
The basic premise of Sunni inheritance law is that the Qur’anic verses on inheritance came to reform the existing system of inheritance in western Arabia, under which the `asaba (male relatives connected to the deceased through male ties) inherited. This necessitates reconciling the scheme of fixed portions allotted to the Qur’anic sharers, the dhaw al fard’id, with the claims of the `asaba, who are treated as residuary heirs. This is an extremely difficult task that has led to the development of rules of great complexity and many divergences between jurists.
In contrast, the Shi’is believe that the Qur’anic scheme of inheritance was meant to supplant altogether the `asaba-based scheme. In application, the Shi`i rules keep more of the inheritance within the nuclear family and often place the daughter(s) of the deceased in a more favorable position than under Sunni law; in Sunni law male agnates are more favored.
The Islamic law of inheritance introduced important changes in the pre-Islamic system. For the first time, women were allowed to inherit-although in almost all instances they were entitled to only one-half the share of a male inheriting in the same capacity. It also permitted inheritance to pass through the female line, although the situations in which uterine relations would actually be entitled to share in the inheritance were exceptional. In addition, the spouse relict was allowed to inherit, although shares were otherwise exclusively distributed to persons sharing a blood tie to the deceased.
Islamic law contemplates inheritance following a mandatory scheme of intestate succession, meaning that the power of the deceased to bequeath property by will (wasdya) is restricted; a testator may bequeath no more than one-third of the estate by will. In Sunni law the testator may not use bequests to benefit persons already taking under the scheme of intestacy; in Shi`i law, however, this is allowed. To avoid dissipation of the estate close to the time of death, a person during marad almawt (“death sickness”) may not dispose of property. Marad al-mawt may last up to one year prior to death and is counted from the time when the condition that actually leads to the person’s demise begins to take inexorable effect.
In the typical case, where there will be a number of heirs of the estate, Islamic inheritance law will lead to the fragmentation of property into small fractional shares that may be unusable. To avoid such fragmentation Muslims have resorted to various devices; one of these was constituting landed property as wagf and thereby excluding it from being passed on under the scheme of intestate succession. [See also Property; Waqf.]
BIBLIOGRAPHY
Coulson, Noel J. Succession in the Muslim Family. Cambridge, 1971. Outstanding general study of Islamic inheritance law.
Layish, Aharon. “Mlrath.” In Encyclopaedia of Islam, new ed., vol. 7, pp. 107-113. Leiden, 1960-. Two scholarly essays on inheritance law.
ANN ELIZABETH MAYER

INHERITANCE – Hybrid Learning

INHERITANCE