The Book of Inheritance

Hindrances to Inheritance and

Miscellaneous Issues

مَوَانِعِ اْلمِيْرَاثِ

Stations

The Book of Dhihar

Glossary

The Hindrances to Inheritance

There are three hindrances: 1166 1) Difference in religious affiliation, 1167 meaning that the people of one religion shall not inherit from the people of another, because the Messenger of Allah (SA) said, “The Muslim shall not inherit from the non-Muslim, nor shall the non-Muslim inherit from the Muslim,” 1168 and, “People of two different religious affiliations may not inherit from one another.” 1169 As for the apostate, he does not inherit from anyone, 1170 and if he dies, his estate becomes a fay’ (spoils). 1171

وَهِيَ ثَلاَثَةٌ: أَحَدُهَا: اخْتِلاَفُ الدِّيْنِ، فَلاَ يَرِثُ أَهْلُ مِلَّةٍ أَهْلَ مِلَّةٍ أُخْرٰى؛ لِقَوْلِ رَسُوْلِ اللهِ :"لاَ يَرِثُ اْلمُسْلِمُ اْلكَافِرَ، وَلاَ اْلكَافِرُ اْلمُسْلِمَ" ولقَولِهِ : "لَا يَتَوَارَثُ أَهْلُ مِلَّتَيْنِ شَتَّى". وَالْمُرْتَدُّ لاَ يَرِثُ أَحَدًا، وَإِنْ مَاتَ فَمَالُهُ فَـيْءٌ.

2) Slavery; a slave may not inherit 1172 and has no estate to be inherited. One who is partially free will

الثَّانِيْ: الرِّقُّ، فَلاَ يَرِثُ اْلعَبْدُ أَحَدًا، وَلاَ لَهُ مَالٌ

1166. All individuals barred from inheritance are treated as non-existent, so they have no impact on the division; nor do they block anyone, either completely or partially.

1167. Inheritance from a non-Muslim

This is the position of the four imams: (A) + (+H, +M, +S). This applies to the court-forced inheritance; as for the will, a Muslim may bequeath to, and accept bequests from, a non-Muslim. (In the West, most of the transfer of property upon death belongs to this category.)

1168. (Ag))

1169. (D – from ‘Abdullâh ibn ‘Amr ibn al-‘Âṣ. al-Albâni:RS) (A): Non-Muslims belonging to different religions will not inherit from one another, if they seek our judgment.

(a) + (-H, -S): Islam is one religion and all other religions are considered to be one, making it permissible for non-Muslims of any faith to inherit from one another.

1170. Unless he returns to Islam before the division of the estate. (al-Mughni)

1171. It belongs to the Muslim public treasury.

(t): The apostate’s estate is passed on to his/her Muslim heirs.

1172. Because they were owned. The way to extend kindness to slaves was to free them first. This could be done by the master while alive or upon his or her death, as in tadbeer (promise of emancipation upon the death of the master).

inherit, 1173 his or her money may be inherited, and he or she may block others (from inheritance) in proportion to the portion of himself or herself that is free.

يُوْرَثُ، وَمَنْ كَانَ بَعْضُهُ حُرًّا، وَرِثَ وَوُرِثَ، وحَجَبَ بِقَدْرِ ما فيهِ مِنَ الحُرِّيَّة.

3) Killing; 1174 the killer shall not inherit from one whom he or she killed unjustifiably. However, if he or she killed the deceased justifiably, such as for a capital crime or retribution, or when the legitimate authorities kill the rebels, then that will not be a hindrance against inheritance.1175

الثَّالِثُ: اْلقَتْلُ، فَلاَ يَرِثُ اْلقَاتِلُ اْلمَقْتُوْلَ بِغَيْرِ حَقٍّ، وَإِنْ قَتَلَهُ بِحَقٍّ كَاْلقَتْلِ حَدًّا، أَوْ قِصَاصًا، أَوْ قَتْلِ اْلعَادِلِ اْلبَاغِيَ، لَمْ يُمْنَعْ مِيْرَاثَهُ.

1173. Partially free means that a portion of a slave has been emancipated.

1174. It was reported that the Prophet (SA) said:

“There is no inheritance for a killer.” (Ma. al-Albâni:Auth; many Hadith scholars:W)

ليسَ لقاتلٍ مِيرَاثٌ

There are several hadiths of controversial authenticity that bar the killer from inheritance. Collectively, they imply confidence that they were related from the Prophet (SA). Also, the wisdom behind this ruling is obvious, so the scholars agreed, in general, on their implication.

1175. (A/SM): The one who kills directly or indirectly (e.g., causing death by digging a well, leaving a machine running, or giving medicine), whether intentionally or mistakenly, will not inherit, whether or not the killer is mukallaf (a legally liable adult). The only killer who will inherit is the one who kills justifiably.
(A2/SM): If one does a permissible act that results in the death of his relative, such as a father giving medicine to his son, he will not be barred from inheritance. What matters is whether the killer will be liable for any retribution, indemnity, or expiation; if not, he or she is not barred from inheritance.
(-H): Indirect killing (causing death by an action that would not usually result in it) does not bar one from inheritance. Also, the non-mukallaf killer is not barred. (-M): Only intentional killing bars the killer from inheritance. (-S): Anyone who took part in the killing in any way is barred, even if it was justifiable.
(A) + (+H, +M): The one who kills justifiably is not barred from inheritance.
Notice that on one side, the Mâlikis tried to hold to account only those who committed wrongdoing, while the Shâfi‘is tried to strictly block all the means to the evil of bloodshed. The Ḥanafis and Ḥanbalis fell in the middle, trying to strike “the right balance.”

Hindrances to Inheritance and Miscellaneous Issues

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