Importance of Prayer & Ruling of its Abandonment
Facing the Qiblah & Intention in the Prayer
Etiquettes of Walking to Prayer and its Description
Description of Prayer Continued
Description of Prayer Continued
Description of Prayer Continued
Pillars and Mandatory Acts of Prayer
Two Prostrations of Forgetfulness
Supererogatory (Voluntary) Prayers
Supererogatory (Voluntary) Prayers Continued
Times of Prohibition of (Supererogatory) Prayer
Congregational Prayers & Latecomers
Jumu'ah (Congregational Friday) Prayer
Introduction & Commercial and Selling
Selling of Primary & Secondary Commodities
Cancellation Options in Transactions
Cancellation Options Continued
Debt Transference & Guarantor-ship
Mortgaging & Security Deposits
Partnership & Companies Continued
Reviving Barren Lands & Per-Job Wage
Lost and Found Property & Foundlings
Prize Money & Deposits for Safekeeping
Chapter on Residuary Heirs
1130
They are every male (relative) who is connected to the deceased directly or through another male relative, except the husband, the female emancipator and her residuary heirs. 1131
وَهُمْ: كُلُّ ذَكَرٍ يُدْلِيْ بِنَفْسِهِ أَوْ بِذَكَرٍ آخَر، إِلاَّ الزَّوْجَ وَالْمُعْتِقَةَ وَعَصَبَاتِهَا.
The one who most deserves the inheritance is the closest, and the closest is the son, then his son however far down (in generations), and then the father, then his father however far
وَأَحَقُّهُمْ بِالْمِيْرَاثِ أَقْرَبُهُمْ، وَأَقْرَبُهُمُ الاِبْنُ، ثُمَّ ابْنُهُ، وَإِنْ نَزَلَ، ثُمَّ الأَبُ، ثُمَّ أَبُوْهُ وَإِنْ عَلاَ، مَا لَمْ يَكُنْ إِخْوَةٌ، ثَمَّ بَنُوْ الأَبِ، ثُمَّ بَنُوْهُمْ، وَإِنْ نَزَلُوْا، ثَمَّ بَنُوْ
1130. Introduction They are called ‘aṣabah, which comes from tying and strengthening, because they support one another and bail one another. As always in Islamic law, they are given rights that correspond with the obligations upon them. The maternal side of the family of the deceased were not required by law to bail him out if he killed someone by mistake or needed to pay the diyah (indemnity) for an injury, etc.
‘Aṣabah could be translated as universal heir, but I chose residuary heir because it is more descriptive of the way their entitlement is determined. They will only take the residual part after the heirs of designated shares take theirs.
It may sound like they are all less deserving than the heirs of designated shares. While that may be mostly true, one of them is the son of the deceased. There will never be a case where he will not have anything left to inherit, because he will completely block all the ḥawâshi (brothers and uncles and their children) and will partially block the parents, causing them to only take 1/6 each. He will also partially block the husband/wife, causing them to take 1/4 and 1/8 respectively. In his presence, it is not possible for the designated shares to be more than 1/3 (or 4/12) for both parents + 1/4 (or 3/12) for the husband, making 7/12 in total.
1131. These are examples of exceptions to the rule of the ‘aṣabah being a male relative connected directly to the deceased or through male relatives. In the example of the husband, he is male and connected directly to the deceased, but he will not be an ‘aṣabah. In the example of the female emancipator, she (or her ‘aṣabah) will be ‘aṣabah for the deceased even though she is female and they are connected to the deceased through her. You can also add to those the mother whose son has been denied paternity in li‘ân; she – or her ‘aṣabah, according to (A) – will be ‘aṣabah for the deceased, (if the deceased was not survived by male offspring).
upward (in generations), given there are no siblings, 1132 then the father’s children 1133 and their children however far down (in generations), then the children of the (paternal) grandfather, 1134 then their children however far down (in generations). This means the children of a more distant male ancestor will not inherit in the presence of the children of a closer male ancestor, and the most deserving of the children of one male ancestor are those closest (to that male ancestor), and if they are at the same distance, then precedence will be given to the one connected through both of his parents. , 1135,1136
الجَدِّ، ثُمَّ بَنُوْهُمْ، وَعَلَى هَذَا لاَ يَرِثُ بَنُوْ أَبٍ أَعْلَى مَعَ بَنِيْ أَبٍ أَدْنَى مِنْهُ وَإِنْ نَزَلُوْا، وَأَوْلَى كُلِّ بَنِيْ أَبٍ أَقْرَبُهُمْ إِلَيْهِ، فَإِنِ اسْتَوَتْ دَرَجَتُهُمْ، فَأَوْلاَهُمْ مَنْ كَانَ لأَبَوَيْنِ.
1132. If there are siblings, they may inherit with the (paternal) grandfather, per (A) + (+M, +S), however, he will still be prioritized. See above for the full discussion on the inheritance of the grandfather in the presence of siblings.
1133. These are the deceased’s full or paternal half brothers.
1134. These are the deceased’s full or paternal half uncles
1135. ‘Ali (RA) said, “You recite this ayah: {After any bequest which was made or debt, as long as there is no detriment [caused]} (an-Nisâ’ 4: 12). But indeed, the Messenger of Allah (SA) judged that debt (be paid) before the will, and that the children (sons and daughters) from the same mother and father inherit before those from different mothers. The man inherits from his full brother before the paternal half brother.” (T. Most Hadith scholars: W, but its meaning is accepted by consensus)
1136. Order of ‘Aṣabât
You are looking first for the direction (jihah), favoring the filiality (bunuwwah) over paternity (ubuwwah), and that over the farther ancestry (judoodah, meaning grandparents and the generations above them) and brotherhood, and that over the uncles (‘umoomah) and then their sons. Then you are looking for proximity (qurb) to the deceased, favoring the brother over the brother’s son and the latter over the brother’s son’s son, etc. Finally, if they are equal in both jihah and qurb, you will look for the strength (quwwah), favoring the son of both parents over the son of the father only.
There are four who will make their sisters co-residuary heirs, so they will have all their inheritance divided between them (for the male twice as much as for the female). They are: the son, the son’s son, the full brother, and the paternal half brother.
وَأَرْبَعَةٌ مِنْهُمْ يُعَصِّبُوْنَ أَخَوَاتِهِمْ وَيَقْتَسِمُوْنَ مَا وَرِثُوْا لِلذَّكَرِ مِثْلُ حَظِّ الأُنْثَيَيْنِ، وهم: الابن، وابنه، وَالأَخُ مِنَ الأَبَوَيْنِ أَوْ مِنَ الأَبِ.
Any other males will take the remainder, such as the brothers’ sons, the paternal uncles, and the sons of the paternal uncles. 1137
وَمَنْ عَدَاهُمْ يَنْفَرِدُ الذُّكُوْرُ بِالْمِيْرَاثِ، كَبَنِيْ الإخوة وَالأَعْمَامِ وَبَنِيْهِمْ.
When the residuary heir is alone, 1138 he or she 1139 inherits the entire estate. If there is an heir with a designated share along with (the residuary heir), that designated share will be given to him or her first, with the remainder for the residuary heir. This is because the Messenger of Allah (SA) said, “Give the designated shares to those who are entitled to them, and what remains goes to the nearest male heir.” 1140
وَإِذَا انْفَرَدَ الْعَصَبَةُ، وَرِثَ الْمَالَ كُلَّهُ، وَإِنْ كَانَ مَعَهُ ذُوْ فَرْضٍ بُدِئَ بِهِ، وَكاَنَ الْبَاقِيْ لِلْعَصَبَةِ؛ لِقَوْلِ رَسُوْلِ اللهِ :"أَلْحِقُوْا الْفَرَائِضَ بِأَهْلِهَا، فَمَا بَقِيَ، فَلأَوْلَى رَجُلٍ ذَكَرٍ."
If the designated shares exhaust the entire estate, then the residuary heir is precluded, as in (the case where the deceased is survived by) a husband, a mother, maternal half siblings, and full siblings; here, the husband takes one-half, the mother one-sixth, and the
وَأَرْبَعَةٌ مِنْهُمْ يُعَصِّبُوْنَ أَخَوَاتِهِمْ وَيَقْتَسِمُوْنَ مَا وَرِثُوْا لِلذَّكَرِ مِثْلُ حَظِّ الأُنْثَيَيْنِ، وهم: الابن، وابنه، وَالأَخُ مِنَ الأَبَوَيْنِفَإِنِ اسْتَغْرَقَتِ الْفُرُوْضُ الْمَالَ، سَقَطَ الْعَصَبَةُ، فَإِذَا كَانَ زَوْجٌ وَأُمٌّ وَإِخْوَةٌ لأُمٍّ وَإِخْوَةٌ لأَبَوَيْنِ، فَلِلزَّوْجِ النِّصْفُ، وَلِلأُمِّ السُّدُسُ، وَلِلإِخْوَةِ لِلأُمِّ الثُّلُثُ وَسَقَطَ الإخوة لِلأَبَوَيْنِ، وَتُسَمَّى: الْمُشَرَّكَةَ وَالْحِمَارِيَّةَ.
1137. The female aunt and cousin do not inherit with their brother (unlike the daughter and sister). So if the deceased is survived by a brother’s son and daughter (the deceased’s nephew and niece), the nephew will take all the residual inheritance. Likewise if his closest male relative is his paternal uncle or cousin; they will not share with their sisters.
1138. With no one else in his degree.
1139. With no one else in his degree.
1140. With no one else in his degree.
maternal siblings one-third – and the full siblings are precluded. This is called: al-musharrakah (shared) or al-ḥimâriyah. 1141 If they are sisters (only) instead, they are (together) entitled to two-thirds, and the problem is subject to proportionate reduction of the shares (from sixths to tenths). This case is called Umm al-furookh. 1142
وَإِذَا انْفَرَدَ الْعَصَبَةُ، وَرِثَ الْمَالَ كُلَّهُ، وَإِنْ كَانَ مَعَهُ ذُوْ فَرْضٍ بُدِئَ بِهِ، وَكاَنَ الْبَاقِيْ لِلْعَصَبَةِ؛وَلَوْ كَانَ مَكَانَهُمْ أَخَوَاتٌ، كَانَ لَهُنَّ الثُّلُثَانِ، وَتَعُوْلُ إِلَى عَشَرَةٍ، وَتُسَمَّى: أُمَّ الْفُرُوْخِ.
1141. Called al-ḥimâriyah in reference to ḥimâr (a donkey) because when ‘Umar precluded the full siblings from inheritance, Zayd told him, “Suppose their father was a donkey or a rock (that is, inconsequential),” so ‘Umar let them share with the maternal half siblings in their 1/3. ‘Umar’s later opinion of sharing was adopted by (-M, -S); his earlier position of dropping the full siblings was adopted by (A) + (+H).
They all drop the paternal half siblings.
1142. “Mother of the chicks” is the literal meaning. It was called this because the denominator increased remarkably from 6 to 10. The husband takes one-half, the mother one-sixth, the maternal siblings one-third, and the (full or paternal half) sisters two-thirds.
If the child is intersex, the determination (of their sex) is based on the urinary orifice; if the urine comes out from the shaft, it is a male, and if it comes out from (between) the labia, it is a female. 1143 If it comes out from the middle, it is an ambiguous intersex person, who will be entitled to half of the inheritance of a male and half of the inheritance of a female. 1144
Likewise, are the cases concerning their blood money, (compensation for) injuries, and others.
They may never marry.
وَإِذَا كَانَ الْوَلَدُ خُنْثَى اعْتُبِرَ بِمَبَالِهِ، فَإِنْ بَالَ مِنْ ذَكَرِهِ، فَهُوَ رَجُلٌ، وَإِنْ بَالَ مِنْ فَرْجِهِ، فَهُوَ امْرَأَةٌ، وَإِنْ بَالَ بينهما وَاسْتَوَيَا، فَهُوَ مُشْكِلٌ، لَهُ نِصْفُ مِيْرَاثٍ ذَكَرٍ وَنِصْفُ مِيْرَاثِ أُنْثَى. وَكَذٰلِكَ الْحُكْمُ فِيْ دِيَتِهِ وَجِرَاحِهِ وَغَيْرِهِمَا. وَلاَ يُنْكَحُ بِحَالٍ.
1143. With advances in medicine, the determination of the sex is much easier. The prevalence of intersex persons with completely ambiguous (gonads and genitalia) is extremely rare. (This condition used to be called ‘true hermaphrodite’ in medical literature.)
1144. The way to resolve the problem is to have two different settlements; in one, you treat the khunthâ as a male, and in the other as a female. You will give each heir the average of their two shares as calculated in those two settlements.
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