Welcome to our Malaadhu Thar’wah (The Wealth Haven) series (ملاذ الثروة). In this edition, we would be examining the impediments to succession under Islamic Law.
Do you know that even a legal heir who is ordinarily entitled to inherit from the estate of a deceased Muslim could lose his right to inherit as a result of certain barring factors? These barring factors are referred to as impediments to inheritance, and we shall be examining them in this article.
In case you missed out on the information dispensed in the last article where we examined the place of Dhawu al-Arham or distant relatives in Islamic law of inheritance, you can click here to check it out.
What exactly do we mean by impediments to succession?
They are personal acts or characteristics of a person that disqualify him from succession despite the fact that he would otherwise be an entitled heir due to blood or marital relationship with the deceased.
They include the following: bondage, difference in religion, homicide or murder, disclaim of paternity or pregnancy, stillbirth, and death in the same calamity.
Examples of Impediments to Succession under Islamic Law
1. Homicide or Murder
As a general rule, the murderer of the deceased will not be able to inherit him. Prophet Muhammad (SAW) himself emphasized this point, saying: “A murderer has nothing from the estate of the murdered (person).”
This rule is for the apparent reason that public interest requires that a killer be barred from inheriting because otherwise since killing would accelerate inheritance, if a killer is allowed to inherit from his victim, such a situation could lead to universal chaos.
While the general rule is that a murderer would not inherit from the person he has murdered, the opinions of the different Islamic schools differ on what type of killing could act as an impediment to the inheritance of an heir.
The Hanafi school of thought, for example, believes that for the killing to act as an impediment, it must be one that is prohibited and which subjects the killer to the law of qisas (retaliation) or kaffarah (compensation for the sinful act). According to this school, whether the killing was intentional, semi-intentional, by mistake, or something similar to a mistake, it will prevent the killer from inheriting.
The Maliki and Hanbali school of thought, on the other hand, believes that killing must be intentional in order to be an impediment. If the killing was by mistake, then it is no impediment. However, he cannot inherit any blood money paid to the victim’s family.
While the Shafii school believes that killing, regardless of its nature, will result in an impediment to the inheritance of an heir, to them, killing by accident would also impede inheritance.
2. Difference of Religion
A Muslim cannot inherit a non-Muslim, and vice versa because succession is based on the deceased Muslim personal law. The inheritors and the deceased’s religions may differ due to the deceased’s conversion to Islam or the inheritor’s conversion to apostasy.
For this impediment to apply, the deceased’s and inheritor’s religious differences must be established and determined at the moment of death.
This guideline regarding the difference of religion being an impediment is based on the sayings of the Prophet (S.A.W) thus: “A Muslim cannot inherit a non-Muslim, and a non-Muslim cannot inherit a Muslim.”
However, a difference in religion is not a bar to having a portion under a will or wasiyyah, but such a share must, not be more than one-third of the net estate.
Slavery is also one of the impediments to inheritance. An enslaved person cannot inherit from his master, just as he cannot inherit from his free-born wife. Also, an enslaved person’s parents cannot inherit his estate because it is generally believed that whatever an enslaved person leaves behind belongs to his master or mistress.
4. Death in the same calamity
When two or more persons who are lawful heirs of one another, such as father and son, husband and wife, and others, die at the same time, maybe in a collapsed building or in a similar event, and it is unknown who died first, they will not inherit from one another.
However, if it is clear that the husband died before the wife, for example, she will be included among the husband’s surviving heirs and granted a portion of his wealth. Her heirs will then inherit her estate and her share of her husband’s estate.
A child who was born dead is not eligible to inherit and cannot be inherited either. However, a child still in the womb is entitled to inherit, and a portion of the estate must be set aside for him.
6. Disclaim of paternity or pregnancy
If a Muslim has disclaimed paternity or pregnancy of his wife through due process of Islamic Law known as the process of Li’an, as contained in the Qur’an (24: 6 – 9), such a husband is barred from inheriting his wife in the event of the wife’s death. Such a wife, too, for whom Li’an has been pronounced, will not inherit her husband’s estate upon his death.
Furthermore, neither the man nor the child born from Li’an will inherit each other. The case of the mother and her child, on the other hand, is different as they will both be heirs to each other.
It is essential to note that those relatives of the deceased person who are barred from inheriting for the reasons stated above do not affect the right of other heirs to inherit, nor does it exclude or limit their respective shares.
Thus, even though one heir is barred from inheriting as a result of any of those impediments, others can go on to inherit from the deceased as long as they have no impediments barring them.
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Shukran Jazeelan for reading.
See you next month!