By Muhammad Yunus, NewAgeIslam.com
Co-author (Jointly with Ashfaque Ullah Syed), Essential Message of Islam, Amana Publications, USA, 2009
Dec 23, 2001
The post war modern era has seen, among other things, three major shifts in civilizational paradigms: i) joint family has, to an extent, given way to individual family units comprising husband, wife and children; ii) women’s financial requirement, role and responsibility has greatly increased due to all round cash pressure – before marriage, after marriage and all the way through the end of the life; iii) family size has greatly reduced. This was not so in the seventh century Arabia through to the pre-modern era, when i) women’s expenses were almost entirely met by their male guardians – father, husband, brother etc. or from inheritance; ii) the avenue and frequency of expenses and financial role and responsibilities of women were far lower and iii) siblings were many.
The Qur’anic inheritance ratios - notably 2:1 in favor of a son, 2/3rds collectively if only daughters (1/2 if only one daughter) (4:11), and 1/8th for a wife - when there are children as well (4:12) was favorable to the female gender for a broad span of human civilization dating from the seventh to mid twentieth century – as women had no share in the inheritance in practically any other major civilization in that long time bracket. However, in the changed/ transitional paradigms of civilization today, singular reliance on inheritance ratios as traditionally practiced creates the following practical situations that conflict with the Qur’an’s cardinal principle of justice and equity and obscure its binding decree on leaving a will (2:180).
1. As family size diminishes, a widow’s share in relation to those of the children diminishes.
2. A son or a daughter receiving substantive gifts (cash or property) from parents, under special circumstances, selectively (to the exclusion of other siblings) later getting their prescribed share of inheritance - without any adjustment for what has already been selectively received.
3. A detached child (son or daughter), who took no financial responsibility of the deceased parents, gets the same share as an attached child who took the financial responsibility of the deceased and may be even less solvent than the detached child.
4. The poor and needy lateral relatives of a person (brothers, sisters, nephews, nieces) who leaves behind children are deprived of any portion in the inheritance though directed by the Qur’an (4:8).
5. A son getting twice as much as a daughter even if he bore no corporate family responsibilities or a daughter was the caretaker of the parents.
6. In the absence of a son, the daughters are not entitled to inherit the whole of legacy left (after payment of legacy and taxes), even if they were in financial hardship or under debt.
7. Family trades /business ventures owned by a person are not amenable to division in arithmetical ratios, and risk closure if each heir demands his/her due share.
8. In the joint family set up that was in vogue until recent times and continues in some communities/ families, the sons bring their wives to their parental home as part of the household which they claim as a natural right after the demise of their parents.
9. The division of residential abodes (8 above) among the children, some of whom may not be sharing the accommodation can also be problematic.
Flexibility in the division of inheritance in light of Qur’anic decree on leaving a will
Traditionally, the division of inheritance between the sons, daughters and the spouse of a deceased person is based solely on the Qur’anic passage on the division of inheritance (4:11/12). However, the passage incorporates a clause mim ‘bade wasiyatin, which means after the execution of the wasiyah (the will), that the Qur’an makes binding on all Muslims:
“It is prescribed (kuteba) for you that when death approaches any of you, and he leaves behind (some) property, he should make a will in a just and fair manner for his parents and near of kin. (This is) binding (haqqan) for the heedful (muttaqin) (2:180).
A testator (who makes a legally binding will) can thus largely adjust the portion of each heir through this instrument of will. The classical Islamic law, however, does not permit any adjustment of the prescribed proportions (4:11/12). There may have been very good reasons to subordinate the ordinance on will (2:180) to those on inheritance (4:11/12), as one may will his properties arbitrarily/ selectively among his heir, or deprive the daughters of any share in the property as some Muslims still do, frustrating the spirit of the Qur’an’s inheritance laws. But with a major paradigm shift in gender dynamics and breakup of joint of families into small independent units in many parts of the world, the Qur’anic Sharia must be invoked to privilege a duly witnessed will over the inheritance ratios. However, if a will arbitrarily disregards the Qur’anic principle of inheritance (along blood lines – vertically and laterally), and deprives an heir of his/her due share in the property of the deceased kin without any technical grounds, or the deceased leaves no will, those affected by the will or its absence may seek arbitration by community elders (2:182). An exception to this rule may apply in the case of a wife who is entitled to receive rich gifts from her husband as part of marital bargain (4:20/21) unless she was found openly immoral (4:19).
“If you want to take one wife in place of another wife, and you had given one of them a fortune - do not take anything away from it. Would you take it by slander (committing) an open sin (4:20)? How can you take it back when you have given yourselves to each other, and they have taken a firm pledge from you” (4:21)?
“You who believe, it is not lawful for you to inherit (anything from your) women (nisa – wife or widow) forcefully, nor should you put them under any pressure in order to take away some of what you have given them, unless they are found openly immoral ….” (4:19).
Hence, depending upon family composition and other attending factors, it should be permissible for a person to leave a will that may not conform to the prescribed inheritance ratios (4:11/12) briefly stating the grounds for the allocation of shares among his/her heir. Alternatively, he may favor one or the other heir selectively with a will to adjust them financially for their contributions/ personal needs. Thus for example if a man leaves a needy grown up daughter who stays with and looks after him and his kid son, he may favor her with a will that together with her inheritance share (half that of a brother) may even exceed her kid brother’s share, or he may as well leave a will favoring her daughter a higher share than the son. Likewise, a person having only daughters can nominate them as his sole heir, as in case of the sons. The Qur’an’s conditional clause of execution of the will in its passage on division of inheritance (4:11/12) (opening paragraph above) and the legislative tone of the passage relating to the will (2:180-182) purports to privilege the latter over the former.
What about allocating equal share to siblings?
The Qur’anic combined package of will and inheritance offers a flexibility that can address the relative financial needs of the heirs and offers even more to a needy daughter than an affluent son. Fixing inheritance ratios disregarding the clause of leaving a ‘will’ (2:180) can lead to highly anomalous situations as illustrated above and inevitably to manipulations by one or the other heir. Thus, allocating equal share between the siblings is in no way a better proposition than the Qur’an’s integrated scheme of will and inheritance.
Practically every family has its own character depending upon the number, age and health education and other essential needs of the heir. A man my leave behind a highly attached married son or daughter under heavy debt and another detached unmarried one in a state of affluence. Giving them equal share or fixing their shares disregarding any provision of will that the Qur’an decrees as a binding instruction (2:180) can only lead to injustice and sour the relation among the heir.
Conclusion: The Qur’anic integrated package of ‘will’ (2:180-182) and inheritance division after the execution of the will (4:11/12) offers a flexibility in the division of inheritance that can enable a needy attached sister to get a higher share of inheritance than an unattached brother. Restricting the shares of the heir at the Qur’anic ratios disregarding the Qur’anic binding (haqqan) decree (kutiba) on will (2:180) or equalizing the shares of the siblings following the example of other communities can leave a great deal of inconsistency in the distribution of inheritance given the divergence in contribution, age, income levels and financial needs of the siblings. However, in case a person dies before making a will, the siblings should mutually agree on relative shares without any gender discrimination depending upon the gender role and needs among the heir. The point is if the divine scheme was to fix inheritance ratios regardless of the age, income, financial needs and circumstances of the heir, there was no need of the binding directive on will (2:180). The very provision of leaving a will allows for flexibility in allocation of shares. Furthermore, a duly witnessed will ensures the inheritance rights of i) a believing non-Muslim widow and ii) an orphaned grandchild who are unlawfully barred from inheriting from legally bound relationships .
In sum, the most distinguishing feature of the Qur’anic laws on inheritance, including the making of a will, is that i) it offered a substantive financial privilege to Muslim women back in the seventh century – a privilege for which women of other major religions had to wait for over a thousand years, and ii) it does not allow any person to bequeath his legacy arbitrarily to whomsoever or whatever manner he/she wishes. It allocates the bulk of the inheritance along the linear (vertical) bloodline and leaves provision for lateral distribution and charity (4:8). The other elements of the Qur’anic inheritance scheme, obscured by an apparent emphasis on the siblings’ gender specific shares are as follows:
i. If a man leaves behinds parents, spouse, sons and, or daughters:
• The father and mother, each gets a sixth of the inheritance (4:11).
ii. If there are no children, but parents and spouse are surviving:
• The wife gets a fourth of what her husband leaves, while the husband gets half of what his wife leaves (4:12).
• If the deceased left brothers and sisters, each of the parents gets a sixth of the inheritance, and the brothers and sisters get the balance - the male having twice the share of the female (4:11).
• If there is no brother or sister, the mother gets a third of the inheritance (4:11).
iii. If neither parents, nor children, nor any spouse is surviving:
• If a deceased man left only one sister, she inherits half of what he left, but if there are two sisters or more, they together inherit two-thirds of what he left (4:176).
• If a deceased woman left one brother, he inherits the whole of what she left (4:176).
• If a deceased man or woman leaves both brother and sister - the male has twice the share of the female (4:176).
• If a deceased man or woman leaves a brother or a sister from the mother’s side (different father), each will get a sixth of the inheritance – and if there are more than two of them, the combined share will be one-third of what is left (4:12).
Finally, an explanation is needed as to why the ratio of inheritance is invariably 2:1 in favor of the male – except in the case of parents inheriting from a deceased child. The reasons could be as follows:
1. In spite of its sanction of revolutionary financial privileges to women, a deeply entrenched patriarchy and the civilizational realities kept women away from the financial domain. Therefore, women, not sufficiently matured in age and experienced in life, were liable to be victim to manipulation, extortion or fraud at the hands of their husbands or male next of kin and risked losing all their wealth.
2. Until recent times, it was normative for the sons to settle down with their families in the parental homes; and for the daughters, to leave the paternal homes after marriage.
3. Until before the advent of modern banking, the men physically protected and secured family wealth against robbers and usurpers, because of their grooming as the defender of the family since early life.
4. The remoteness of women from the financial domain (1 above) led to their relegation of financial decisions to the husbands and deterred them from sharing the inheritance with the poor and needy relatives (as commanded in the verse 4:8) thus compromising the Qur’anic spirit of justice and wealth distribution.
To wind up this discourse, this is to affirm that the details furnished are drawn from a duly approved and authenticated work and given the highly technical nature of the subject, any cursory reading may not help a lay reader grasp the essence and the beauty of the Qur’anic paradigms on the subject.
. i. Since a believing non-Muslim woman is entitled to the same level of dowry as a Muslim woman (5:6), she, in her capacity as a widow of a Muslim man, should logically be entitled to the same level of inheritance as a Muslim woman.
ii. The legal share of an orphaned grandchild: The passage 4:8-10 entitles a person who lost his father/mother before his grandfather/grandmother a share in their inheritance and those who deprive them “devour fire into their bellies” (4:10).
Muhammad Yunus, a Chemical Engineering graduate from Indian Institute of Technology, and a retired corporate executive has been engaged in an in-depth study of the Qur’an since early 90’s, focusing on its core message. He has co-authored the referred exegetic work, which received the approval of al-Azhar al-Sharif, Cairo in 2002, and following restructuring and refinement was endorsed and authenticated by Dr. Khaled Abou El Fadl of UCLA, and published by Amana Publications, Maryland, USA, 2009.