Islamic Inheritance

Position Paper on Islamic Inheritance

A source of significant controversy both  inside  and  outside
the  Muslim  community is the Islamic law of inheritance. This
"law" is in fact a continuing  process  of  interpretation  of
Quranic  rules  and  principles  to form the complex "laws" of
inheritance under Islam. It is a dynamic process which,  based
on  specific  text  in the Quran and traditions of the Prophet
Muhammad, continues to be discussed in  each  Islamic  age  by
Muslim scholars addressing changing issues and times.

Before  delving  into this complicated and controversial area,
one must  first  realize  that  Islam  revolutionized  women's
inheritance  rights.  Prior  to  the Quranic injunction -- and
indeed in the west until only  recently  --  women  could  not
inherit  from  their  relatives,  and in the case of Arabia at
least, were themselves bequeathed as if they were property  to
be  distributed at the death of a husband, father, or brother.
Thus, Islam, by clearly stating in the Quran that  women  have
the  right  to  inherit  for themselves, changed the status of
women in an unprecedented  fashion.  The  Quran  states:  "Men
shall  have a share in what parents and kinsfolk leave behind,
and women shall have a share  in  what  parents  and  kinsfolk
leave behind." (Quran 4:7). Thus, whether women can inherit at
all is not the controversy. Rather, the dispute centers around
the "share" that is to be inherited.

The  same  chapter of the Quran goes on to state in detail the
division of property based on the number of relatives and  the
level  of  kinship  of  the  inheritor.  (See  Quran 4:11) The
injunction that a male relative receives a share equal to that
of  two females applies only to the inheritance of children by
their parents. Parents who inherit from a deceased child,  for
example,  each  inherit  one-sixth  of  the  property  if  the
deceased child is survived by a child of his or  her  own.  In
that  instance,  the  division is equal between the mother and
the father of the deceased. The verse  then  states  what  the
mother  shall  receive  if the deceased left no children or if
the deceased left siblings. Presumably,  the  father  and  the
mother  inherit  equally  in  those  situations. The rationale
behind a brother receiving double his sister's share,  on  the
other  hand, is based on the Islamic legal presumption that he
has an obligation to provide for her support. Bearing in  mind
that these verses were revealed in Arabia over 1400 years ago,
when women had no  financial  security  other  than  what  was
provided by men, these verses demonstrate the care and respect
given to the family unit,  and  ensured  that  women's  rights
would  continue  to be protected. Hence, brothers with sisters
were given larger shares than their sisters, together with the
legal  obligation  to  spend a portion of this wealth on those
sisters.

Within  the  field  of  Islamic  scholarship,  there  is  much
discussion on the topic of inheritance. There are scholars who
argue that these rules apply only if no will was left  by  the
deceased  and  that  the  division  can  be changed by a will.
Presumably, the will would be analogous to a debt and would be
paid  prior  to any other disbursement of property. (See Quran
4:11; Fathi Osman, Muslim Women  in  the  Family  and  in  the
Society,  at  24-25.)  Furthermore, a tradition of the Prophet
Muhammad states that a person can will up to one-third of  his
or  her  property in any manner, thus allowing equalization of
gender-based default presumptions. (It should be noted that  a
majority  of  the  Sunni  schools  of  thought  state that the
one-third  share  cannot  be  bequeathed  to  natural   heirs;
however,  others,  including  the Shiite school, disagree with
this limitation.) Moreover, transfers of property can be  made
during the life of the testator.

The majority of schools argue that the verses provide guidance
as  to  who  should  be  provided  for  and  at  what   level.
Furthermore,  there  are scholars who maintain that these laws
are applicable only in an Islamically-based legal  system  and
government  where  a  woman  would  have  recourse  against  a
relative who was obligated to provide for her but failed to do
so.   One  may  argue  that  in  the  absence  of  a  complete
application of Islamic law, where the  rights  of  women  will
have  no teeth, Muslims should turn to the spirit of that law,
which is justice, and find ways to accomplish this goal.  This
is  especially  true  where  Muslims are a minority, as in the
United States. Muslim scholars, legislators,  and  researchers
must  --  and are beginning to -- boldly address this issue to
focus on these challenges. The  Islamic  laws  of  inheritance
are,  like  all  issues in Islamic law, a dynamic process that
must respond to the many  challenges  and  opportunities  that
world changes present.