Chapter 39: Shares of Inheritance
Fara'id is the plural of farida, meaning "duty". Part of its excellence is indicated by the words of the Prophet, may Allah bless him and grant him peace, "Learn the shares and teach them to people. Knowledge will be taken away and seditions appear until two people disagree about the share and do not find anyone who can decide between them." (al-Bayhaqi and others)
39.1. List of heirs
39.1a. Male heirs
There are only ten male heirs: the son, the son's son, to the furthest generation, the father, the paternal grandfather, to the furthest generation, the brother, the son of the brother, to the furthest generation, the paternal uncle, and the son of the paternal uncle, to the furthest generation, the husband and the male client.
[ Brothers includes full brothers and half brothers by the father (consanguine). The same is true of paternal uncles. The client is one who has been freed by a person.]
39.1b. Female heirs
There are only seven female heirs: daughter, daughter of the son, mother, grandmother, sister, wife and female client.
[ This is the full sister or the consanguine sister.]
If the wife has no children or grandchildren, the husband inherits half. If she has children or grandchildren by him or by another husband, he gets a fourth.
[ If she has children by another marriage or by illicit sex or li'an, by a free man or slave, Muslim or unbeliever. This is taken from the Book of Allah.]
If the husband has no children or grandchildren, the wife inherits a fourth. If he has children or grandchildren by her or by another wife, she gets an eighth.
[ This is taken from the Book of Allah.]
[Hashiyya: In the case of spouses inheriting from one another, they must both br Muslim, free, and not the killer of the spouse, and the marriage must be sound.]
39.4a. The basic rule
A mother inherits a third from her son if he leaves neither child or grandchild or two or more brothers except in two cases.
[ When there is any sort of sibling, full or half, provided they are free Muslims and not the killers.]
39.4b. The first exception
The first is when he leaves a wife and both parents. Then the wife gets a fourth and the mother a third of what remains and then the rest goes to the father.
[ What remains is two shares. If the grandfather is in place of the father, she takes an actual third of the estate because she inherits the share with him and if it is the father, it is by virtue of agnation (males who are residual heirs).]
39.4c. The second exception
The second is when a woman leaves a husband and both parents. The husband gets a half and the mother a third of what remains and the rest is taken by the father.
[ She receives a sixth. The husband has three sixths, the mother one sixth, and the two remaining sixths go to the father.
These two cases are called Gharawayn because the mother is "duped" (gharrat) in them, and takes a third in expression, not meaning because in the first she has a fourth and in other a sixth.]
39.4d. 'Awl (Accommodation)
In other cases, the mother receives a third unless her share is decreased by 'awl (accommodation).
[ In other than these two cases, she receives a full third. Accommodation occurs when there are more shares than the estate. That is when the number of shares is multiplied, as 24 shares is like two-thirds and two-sixths. The share is not denied by it, and it is not possible to cancel some of the shares without an excluder, and none of those with a share is singled out for decrease. Then the number of shares are increased so that the loss is divided out between all the people of shares after the people owed debts. That is called 'awl and the originator was al-'Abbas and the Companions agreed with him.
That arose when a woman died in the khalifate of 'Umar, may Allah be pleased with him, leaving a husband and two sisters. The Companions met and he said to them, "Allah has allotted half to the husband and two-thirds to the sisters. If I begin with the husband, the sisters will not have their right. If I begin with the sisters, the husband will not have his right." Al-'Abbas ibn 'Abdu'l-Muttalib suggested 'awl. He said, "I think that when a man dies and leaves six dirhams, and a man is due three and another four that the property is divided into sevenths." The Companions adopted his position.]
39.4e. When the mother gets a sixth
If the deceased leaves a child or grandchild through by a son or two or more brothers, of whatever sort, then the mother has a sixth.
[ He mentions the exclusion off the mother from a third to a sixth by two brothers. That is the school of all the Imams except Ibn 'Abbas. He said that she is only excluded by three brothers, seeing evidence in the words of Allah, "If you have brothers or sisters your mother gets a sixth" (4:11) The disagreement derives from the minimum of the plural.]
39.5a. When the father is the sole heir
If the father is the only heir, he inherits the entire the estate of his child.
[ Whether it is a son or a daughter.]
39.5b. When there are other heirs
If the decreased has a son or grandson by the son, the father takes a sixth. If the deceased has neither child or grandson by the son, the father has a sixth and all the others entitled to shares are given their shares and then he takes the rest.
[ Other heirs are the daughter, daughter of the son, or two of more of them. If there is anything left, he takes it by virtue of agnation since it is confirmed that the Prophet, may Allah bless him and grant him peace, said, "Give shares to their people, What is left is for the most entitled male." That exists in the father.]
39.6a. When the son is sole heir
An only son inherits the entire estate, or he takes what is left after the shares of those entitled to a share, like a wife, parents, or grandfather or grandmother.
[ He inherits it all when there is no one else entitled to a share. When he has one or more brothers, they inherit all the property and it is shared between them. One begins with the people of shares because they are the basis in respect of the Ôasaba because they have specific shares in the Book and Sunna. If he only has a wife, the question is one of eighths. She has an eighth and he has the rest. If he has only two parents, it is in sixths. The parents have two-thirds and he has the rest. If there is a grandmother or grandfather, it is also sixths and the grandfather or grandmother has a sixth and he has the rest. If he has a mother and two parents, it is 24ths and the wife has the 3 of her eighth and the parents the 8 of their third and the rest is his.]
39.6b. A son's son
A son's son is in the position of the son when there is no son.
[ This is the case if there is no direct son, but he is not like the son in all aspects because the son is never dropped whereas the son of the son is dropped if there are two parents, two daughters and the son's son. He also does not exclude those the son excludes. He also is not the same in respect of agnation. The son is an agnate in relation to the daughters but the son's son is not.]
39.6c. A son and a daughter
If there are a son and a daughter, the male receives twice the share of the female. It is the same whether there are several or few sons and daughters. They inherit at this ratio either the entire estate or what is left after people take their shares.
[ This ratio applies is either case. For instance, there are five sons and five daughters. They divide the property into fifteen shares and it is distributed in that manner.]
39.6d. If there is no son
The son of a son is like the son in his absence in respect of inheritance and exclusion of other heirs.
[ This is repeated.]
An only daughter inherits half the estate. Two daughters inherit two-thirds of it. If there are more, they do not receive more than two-thirds.
[ Her inheritance is based on the words of Allah, "If she is one on her own she gets a half." (4:11) The case of two or more is also based on what the Prophet, may Allah bless him and grant him peace, did.]
39.8 Son's daughters
39.8a. Their ruling
The daughter of a son is like a daughter when there is no daughter. Similarly, the son's daughters are like daughters when the deceased himself has no daughters.
[ So the consensus is that she inherits half, and if there are two or more they inherit two-thirds.]
39.8b. A daughter and a son's daughter
If there is a daughter and the daughter of a son, the daughter gets one half and the daughter of the son gets a sixth to complete the two-thirds. If the son has several daughters, they do not get more than the sixth if they have no brother with them. The remainder goes to the agnates.
[ Her receiving a sixth is based on the judgement of the Prophet, may Allah bless him and grant him peace. The case when there is a brother present will be discussed later.]
39.8c. If there are two daughters
If there are two daughters, then the daughters of the son get nothing unless they have a brother. In that case the remainder of the estate is divided between them, the male getting twice the share of the female.
[ They get none of the sixth because the two-thirds is already complete without them. If nothing remains, they get nothing because they inherit by agnation and the agnate only inherits what is left over.]
39.8d. A male below the son's daughters
When there is a male in the generation below them, the estate is also shared between him and them.
[ On the basis of agnation.]
39.8e. A son's daughters
It is the same if the daughters of the son inherit a sixth with the daughter, and in the generation below them there are daughters of a son or a generation below them which contains a male: the residual estate is shared between him and his sisters or paternal aunts in the same way. The daughters of the son who take a share in the two-thirds have no share in the residual estate.
[ This causes agnation and so a male receives the portion of two females. Ibn 'Umar said that the son of the son causes agnation in his generation and above, but not below.]
39.9. Full and consanguine sisters
39.9a. The share of the full sister
A full sister inherits half. Two or more sisters share in two-thirds.
[ Since Allah says, "If a man dies childless but has a sister she gets half of what he leaves." (4:175) The two-thirds is because Allah says, "If there are two sisters they get two-thirds of what he leaves."]
39.9b. Brothers and sisters
If there are several full or consanguine brothers and sisters, then the entire property is divided between them, with the male receiving the share of two females, whether they are many or few.
[ Because Allah says, "If there are brothers and sisters the males receive the share of two females." (4:175)]
39.9c. Sisters' share when there are daughters
If there are daughters, then the sisters become like the 'asaba (agnates) inheriting what is left over, but they are not enriched at the daughters' expense.
[ They receive no specific share. They take what is left on the basis of agnation, in taking the residual estate, but they are not like the agnates in taking all the estate.]
39.9d. When they inherit nothing
Brothers and sisters receive no inheritance when there is a father or a son or a grandson.
[ Because they are a lower generation than the father. When someone is lower than someone else, he does not inherit along with him. He is excluded and omitted. In the case of a son, he is stronger in agnation than them. As for the second, the son of a son has the same position as the son.]
39.9e. The absence of full siblings
In the absence of full siblings, consanguine siblings are like full siblings, both male and female.
[ If there are several. If there is only one she inherits half. If there are males and females, the estate is divided between them with the male getting twice the share of a female.]
39.9f. Remaining cases
If there is a full sister and one or more consanguine sisters, the full sister gets half and the remaining sisters share in the sixth. If there are two full sisters, the half-sisters receive nothing unless there is a brother with them. Then they take whatever remains, with the male receiving the share of two females.
[ The sixth is to complete the two-thirds. Ibn MasÔud said that the consanguine sister has no share in this case. If there are two sisters, they take the full two-thirds and the others are removed and only inherit on the basis of agnation.]
30.10 Uterine brothers and sisters
39.10a. Their share
The inheritance of a uterine sister and brother is the same: a sixth, the same for either.
[ If there is only one and there is no distinction between male and female.]
39.10b. When there are several
If there are several of them, then the third is shared between them, each receiving the same amount.
[ Whether males, females, or both. They agree that what is meant by the brother and sister is His words "If a man or woman has no direct heirs but has a brother or sister, each of them gets a sixth," (4:12) is only the uterine sister. The one without heirs is the one who has no children or parent.]
39.10c. When they are excluded
They are excluded from the inheritance by a child and his or her children, a father, or a paternal grandfather.
[ This is complete exclusion. "Child" is a daughter or a son. A maternal grandfather does not exclude because he does not inherit.]
39.11. Full and consanguine brothers
39.11a. The share of brothers
The brother inherits the entire estate if he is the sole heir, if he is full brother or has the same father (consanguine). A full brother excludes a consanguine brother.
[ He is all 'asaba. A consanguine brother has this judgement when there is no full brother. If there is a full brother, he excludes the half brother.]
39.11b. When there are several brothers
If there is one or more brothers and sisters, full or consanguine, then the estate is shared between them, with the male having twice the share of a female.
[ This is when there are no full brothers. This is repeated.]
39.11c. When there are other fixed heirs as well
If there are those entitled to specific shares as well as the brother, one begins with those with specific shares and he takes what is left. Similarly what remains goes to the brothers and sisters, with a male receiving twice the share of a female.
[ That is because the Messenger of Allah, may Allah bless him and grant him peace, said, "What remains after the shares goes to the more entitled man," and the brother is included in this. So what is left goes to the full brothers or if, there are none, the consanguine brothers, and that is divided between them.]
39.11d. If nothing is left
If nothing is left, they receive nothing unless there are uterine brothers among the people of shares who inherited a third. Then any full siblings, male and female, share equally with the uterine brothers in their third. This share is called "shared" (mushtarika). Consanguine brothers do not share with the uterine brothers because they do not have the same mother.
[ Males only, or females only, or both. The rest of the heirs inherit two-thirds, like the wife, mother or grandfather and that completes the estate.
They share by virtue of having the same mother.
It is called "shared" because the brothers share in the third, and is every question in which there is a husband and mother or grandmother, and two or more of the mother's offspring, and 'asaba in the form of full siblings. This is also known as the Himariyya case. That is because the case was presented to ÔUmar ibn al-Khattab, may Allah be pleased with him, and he wanted to judge the elimination the full brothers, and one of them said, "Give. Even if our father was a donkey (himar), do we not have the same mother?" So he judges a third for all of them equally, full and uterine siblings, the portion of the man the same as the portion of the female.]
39.11e. Remaining sisters are accommodated
If there remains any full or consanguine or sisters, accommodation is made for them.
[ The sharing is invalid and it becomes one of the questions of 'awl. The accommodation is that a half becomes three-sixths and is reduced to three-tenths. The two-thirds of the sisters becomes four-sixths, and is reduced to four-tenths.]
39.11f. Other cases
If there is only one uterine brother or sister, the case is not mushtarika. The residual estate goes to the siblings whether they are males, or males and females. If there are only full or consanguine sisters, there is accommodation for them.
[ What is left is a sixth. If there are males and females, the males receive twice the share of the female.]
39.11g. Consanguine brother
A consanguine brother is like the full brother in the absence of a full brother, except in the case of mushtarika.
[ The full preconditions for full brotherhood are missing as they do not share the same mother.]
The son of a brother is like the brother in the absence of the brother, whether he is a full or consanguine brother. The son of a uterine brother does not inherit.
[ He is in that position in agnation in particular, not in all aspects. One of the aspects in which he differs is mentioned. The reason that the son of uterine nephew does not inherit is that his father is one of the people of specific shares and does not enter into agnation, and so he is like the son of the daughter.]
39.13. Exclusion of heirs
39.13a. The full brother
A full brother excludes a consanguine brother, but a consanguine brother takes precedence over the son of a full brother. The son of a full brother takes precedence over the son of a consanguine brother.
[ This point is repeated. A consanguine brother is a degree higher than the son of a full brother.]
39.13b. Exclusion and the paternal uncle
A son of a consanguine brother excludes a full paternal uncle. A full paternal uncle excludes a consanguine paternal uncle. A consanguine paternal uncle excludes the son of a full paternal uncle. The son of a full paternal uncle excludes the son of a consanguine paternal uncle. So the nearer relative always has the greater entitlement.
[ This is all by the closer level of degree, and the principle is general to all relatives.]
39.14a. Those who are non-heirs
Those who do not inherit include the the children of sisters of whatever sort, the sons of daughters, the daughters of a brother of whatever sort, the daughters of a paternal uncle, the maternal grandfather, and a uterine paternal uncle.
[ Al-Fakhani said some texts have, "Nor the maternal grandmother." It is also includes uncles.]
39.14b. Slavery is an impediment
A slave does not inherit, nor does a slave who is in the process of being freed.
[ This includes the umm walad and mudabbar.]
39.14c. Difference of religion is an impediment
A Muslim does not inherit from an unbeliever nor an unbeliever from a Muslim.
[ The majority position is that a Muslim does not inherit from an unbeliever and there is consensus that an unbeliever does inherit from a Muslim.]
Others who do not inherit are: the son of a uterine brother, the maternal grandfather and the mother of the maternal grandfather.
[ Already mentioned.]
39.15. More excluded heirs
39.15a. Others who are excluded
Nor does the mother of the paternal grandfather inherit along with her son, the father of the deceased.
[ She, in fact, does not inherit at all. ]
39.15b. Uterine brothers
Uterine brothers do not inherit with the paternal grandfather, nor with the sons or daughters or grandchildren through a son. Siblings of any sort do not inherit with the father.
[ This is repeated.]
39.15c. Paternal uncles
A paternal uncle does not inherit with the paternal grandfather nor the son of a brother with the paternal grandfather.
[ Because the level of the grandfather is that of the brother, and the brother excludes his son and those in his rank.]
39.16 Impediment of homicide
39.16a. Homicide is a bar to inheritance
The murderer does not inherit either the estate or blood money. Someone guilty of accidental homicide does not inherit any of the blood money, but does inherit from the estate.
[ This is about the person who kills the deceased. As for the one who kills deliberately without transgression, like the ruler executing someone from whom he inherits for a hadd obliged on him, or like someone killing his father who is a bandit, they do inherit.
In the case of accidental homicide, he is excluded in one place and not in another. For example, there are two brothers and one of them kills the other, then the mother inherits a sixth from the brother and the rest is for the two brothers together, because the brother excludes her from a third to a sixth and she inherits a third of the blood money because the killer does not inherit blood money and so he does not exclude her.]
39.16b. Other impediments
Other impediments to inheritance are negation of lineage by the li'an divorce, and difference in the order of death, as when a relative dies on a journey or under a collapsed building and the earlier is unaware of that the precondition is missing, i.e. the death of the heir must be after the death of the one who leaves the inheritance.
39.17. Effect of exclusion
Anyone who does not inherit for some reason cannot then exclude another heir.
[ Except in the five cases mentioned in the Usul.]
39.18. Inheritance by a spouse divorced or married in the final illness
39.18a. A woman finally divorced in the final illness
A woman who has been trebly divorced in the final illness of her husband inherits from her husband, but if she dies first, he does not inherit from her. The same ruling applies if the divorce was a single one and he dies of that illness after her 'idda has finished.
[ She inherits from him because the Prophet, may Allah bless him and grant him peace, forbade excluding an heir by doing that. 'Uthman judged that the wife of 'Abdu'r-Rahman ibn 'Awf inherit from him after her 'idda was over. He had divorced her absolutely when he was ill and he died of that illness. The man does not inherit from her because she is unrelated to him by virtue of the divorce. Even if her 'idda is over, she still inherits if he dies of that illness.]
39.18b. Divorce while he is in good health
If someone in good health pronounces a single divorce against his wife, they still inherit from one another as long as she is still in her 'idda. If the 'idda has finished, they do not inherit from one another.
[ There is no suspicion about divorce when the person is healthy.]
39.18c. Marriage in the final illness
If a man marries in his illness, they do not inherit from one another.
[ Because the marriage is invalid.]
39.19a. The ruling
A maternal grandmother inherits a sixth as does a paternal grandmother.
[ Absolutely because it is established that the Prophet, may Allah bless him and grant him peace, gave her a sixth. (Muwatta')]
39.19b. When there are two grandmothers
If there are both of them, then the sixth is shared between them, unless the maternal grandmother is a degree closer, in which case she is more entitled to it because there is a text about her. If it is the paternal grandmother which is closer, then the sixth is shared between them.
[ The other inherits by way of analogy with the maternal grandmother. The sixth is equally divided unless there is a generational difference. If, however, it is paternal one which is closer, they share in the sixth because her position is based on analogy, not text.]
39.19c. Which grandmothers inherit
According to Malik, only two grandmothers inherit: the father's mother and the mother's mother or their respective mothers. Zayd ibn Thabit is reported to have allowed three grandmothers to inherit: one on the mother's side and two on the father's side: the father's mother and the mother of the father's father. None of the Khalifs is reported to have allowed more than two grandmothers to inherit.
[ They take their place in their absence since the nearer excludes the further as we stated.]
39.20. Paternal grandfather
39.20a. His share
If there is only the paternal grandfather, he takes the entire estate.
[ This is when there are no full or consanguine brothers or sisters or any others of the people of specific shares, like a daughter and daughter of a son.]
39.20b. If there are other heirs
If there is also a son or a son's son, the paternal grandfather takes a sixth. If there are people with specific shares other than brothers and sisters, he is given a sixth. If there is anything left over, it is his.
[If there are people with specific shares, he has a sixth of the basic estate as was mentioned. After the grandfather takes the sixth and the people take their shares, then he inherits any residual estate by agnation.]
39.20c. When there are brothers with the people of shares
If there are also brothers along with the people of shares, the grandfather has three choices and he can select whichever he prefers, i.e. whichever is best for him. He can share with the brothers, take a sixth of the total estate, or take a third of the residue.
[ Full brothers or consanguine brothers. He can choose whichever course he prefers.]
39.20d. When there are only brothers
If there are only brothers inheriting with him, he shares with them if it is one or two brothers, or what is their equivalent: four sisters. If there are more than two brothers, he takes a third. So when inheriting with brothers, he takes a third, or he divides the estate with them, whichever seems better for him.
[ And there are no people with specific shares. A third refers to the total estate.]
39.20e. Consanguine brothers
Consanguine brothers inherit with the grandfather in the same manner as full brothers if there are no full brothers. If there are both full brothers and consanguine brothers, the full brothers may count the consanguine brothers with them to reduce the share of the grandfather. Then they are more entitled than them to that.
[ An exception to this is the mushtarika case which was already mentioned.]
39.20f. An exception
An exception is when there is, in addition to the grandfather, a full sister who has a consanguine brother or sister or both. She takes her half of the estate and surrenders what is left to them. Sisters are not enriched at the expense of the grandfather, except in the case of al-gharra' which will be explained later.
[ She takes what she would have taken if she had been alone. The sister does not get anything when there is a grandfather except in the case known as the Akdariyya or Gharra', in which the sister receives a share with the grandfather.]
39.21 The patron (mawla)
39.21a. The ruling of the client
When the mawla (patron) is the only heir, he or she inherits all of the estate, whether the patron is a man or a woman. If there are people with shares as well, then the patron takes what is left after they have taken their shares.
[ The mawla is the emancipator. When the deceased has no one with a fixed share nor any agnates, the emancipator inherits by virtue of agnation. The wala' goes to the person who sets a slave free because the Prophet, peace be upon him, said, "The wala' is to flesh like flesh of lineage."
If there are those entitled shares, and there are no agnates, he takes the remainder because he inherits by agnation and that was the judgement of the Prophet, may Allah bless him and grant him peace. An example is when he leaves a daughter: she takes half and he takes the rest.]
39.21b. When there are agnates
A patron inherits nothing when there are agnates ('asaba), but he is more entitled than uterine relatives who have no share in the Book of Allah Almighty. Only uterine relatives who have a share in the Book of Allah inherit.
[ When the deceased has agnates because they inherit by lineage. He is more entitled than uterine relatives because they have no agnation and so share.]
39.21c. A female patron
A woman only inherits by wala' from those she herself set the slave free, or through subsequent freeing or childbirth (by the slave she set free).
[ Only those she herself set free, or those set free by the one she set free, without or without her permission. Ibn 'Umar says, "Freeing is clear since a woman frees a slave and he in turn he frees a slave. The freed slave dies first and then the one he freed dies."
As for childbirth, there are further details regarding it. When she frees a slavegirl who is pregnant, then the wala' of the slavegirl and the child belong to the woman who set her free. The wala' of those the freed slavegirl bears after being frees goes to the patron of their father, i.e. those who freed the father. If the father has no patrons, it goes to the treasury.]
39.22 Accommodation by reduction (Ôawl)
39.22a. When it takes place
When the combined shares known in the Book of Allah are more than the estate, then all of them are reduced and the shares are reduced proportionately.
[ What is said in this question is that the asl of the share is established to solve the case. Each heir with a fixed share is given his share and then they are all added together. If the total is equal or less than the total estate, there is no accommodation. If, however, the sum is greater than it, you know that there must be accommodation, like the Minbariyya case. Its thirds, sixth and eighth are more than 24, When there is accommodation, the share is put in the place it reaches in the shares, which is 27. The Minbariyya is an example of that. It is a wife, two parents, and two daughters. The two daughters have two-thirds, each of the parents has a sixth and the wife has an eighth. The share of the parents is combined and we are content with one, which is one of six. We add to it the share of the daughters. The share of the wife agrees with the product of six by half and so 3 times 8 gives 24. The daughters have 16 for the 2/3, the father's 6 is 4, and the mother has 4. This is 24. Then we need the wife's share, so accommodate her eighth into three shares and then the total is 27.]
There is no accommodation for a sister when there is a grandfather except in the gharra' case. This is when a woman dies leaving a husband, mother, full or consanguine sister and a paternal grandfather. The husband gets half, the mother a third, and the grandfather a sixth. Since the estate is exhausted, there must be accommodation for the sister's share of half, which is three. Then the share of the grandfather is added to her share, and the total of that is divided between them in thirds. She has a third and he has two-thirds, and so there are 27 shares.
[ Malik named the case this. The question is one of sixths. Half is 3, a third is 2 and a sixth is one. So by accommodation, the question becomes one of 9. Then the grandfather says to the sister, "You cannot have more in the inheritance because you are with me like a brother, so return what you have, which is 3, to what I have, which is a share so that we can divide it with the male having twice the share of a female. Four to three is not sound and does not agree and so 3, the number of the separate parts for accommodation of the shares, is multiplied, which gives 9 and so it is 2: the 3 for the husband multiplied into the 3 by 9. The sister and grandfather have 4 multiplied by 3 which is 12 and the sister takes her third which is 4 and the grandmother takes her third, which is 8.]
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