Islamic inheritance law in the dock
- The usual Islamaphobic suspects in the British press have attacked Law Society guidance for drafting ‘sharia-compliant’ wills.
- They argue it’s yet another example of sharia law creeping into British law
- Campaigners claim such a move is a set-back to equality legislation
- However, Islamic inheritance laws fit into a well-defined social and economic order set by Islam which helps to safeguard and guarantee economic and societal rights
The Law Society guidance to solicitors on drafting wills ‘compliant with Islamic inheritance law’ have been attacked as being discriminatory. The criticisms are that male heirs receive double the amount inherited by a female heir, Non-Muslims may not inherit at all, only Muslim marriages are recognised and illegitimate and adopted children are not Sharia heirs.
As is often the case with the mainstream British media no attempt is made to understand, explain or contextualise the basis of Islamic inheritance law or indeed the basis of inheritance law in the British legal system, which is assumed to be superior.
The reality of British inheritance law
In British law the deceased can leave their wealth to whomever they will, denying family heirs and relatives assets and property as they wish. There are examples of deceased old ladies leaving their entire estate to a charitable animal home perhaps leaving needy family and close relatives empty handed. Today British law allows daughters to be completely excluded from inheritance if the deceased so wishes, as was in fact legislated during feudalism in medieval Europe.
Indeed only in 2013 did the British Monarchy rescind cognatic primogeniture. This was a law that preferred male descendants to inherit the British throne over daughters. Even till today British law still prefers the first born over the other children to inherit the throne.
Giving individuals the freedom to completely decide on the disposal of their assets can and sometimes does create an inequitable and unjust distribution of wealth, which is often the fall-out of family disputes or is simply based on the whims of the deceased. Family heirs thus become aggrieved with the implications that the family unit and unity becomes undermined. If those family members are also needy then poverty and destitution may not be addressed based on the desires of the deceased.
Islam’s perspective on inheritance
From the Islamic perspective however the money and the property that we possess in this life is a trust from God and our responsibility to use it for His SWT sake extends beyond our death, for on the Day of Judgement we will surely be asked about our wealth and how we spent it.
The two feet of the son of Adam will not move on the Day of Judgement in front of his Lord until he is asked about five things: about his life, and how he lived it? About his youth, and how he lived it? And about his money, how did he earn it? And what did he spend it on? And what did he do with his knowledge? [At Tirmidi]
Islamic law allows a person to bequeath up to 1/3 (one third) of his or her estate to whomever he or she wishes, including Non-Muslims, providing the beneficiaries are not from amongst those who will benefit from the remaining 2/3 (two thirds). The Prophet, may the mercy and blessings of God be upon him, stated one third and said, “It is better to leave them rich rather than poor and destitute”. [Saheeh Al-Bukhari].
It is an opportunity to perhaps help a poor relative who would not otherwise qualify for a share or even to leave something to a person of another faith, because they cannot inherit from the other two thirds of the estate.
In accordance with the principle that one third of a person’s estate may be distributed as he or she wishes the Prophet Muhammad, may the mercy and blessings of God be upon him, said, “God was being generous to you when He allowed you to give one-third of your wealth (in charity) when you die, to increase your good deeds.”[Ibn Majah].
After the bequest there are then the fixed share inheritors, these are those whose percentage of the share is explicitly mentioned in Chapter 4 of the Quran, and there are the residual inheritors, who will receive the balance of the estate once the fixed shares have been calculated.
“God commands you as regards your children’s (inheritance): to the male, a portion equal to that of two females; if (there are) only daughters, two or more, their share is two-thirds of the inheritance; if only one, her share is a half. For parents, a sixth share of inheritance to each if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased left brothers (or sisters), the mother has a sixth. (The distribution in all cases is) after the payment of legacies he may have bequeathed or debts. You know not which of them, whether your parents or your children, are nearest to you in benefit; (these fixed shares) are ordained by God. And God is Ever All-Knower, All-Wise.” [Quran 4:11]
The Islamic rules of inheritance are clear and divinely revealed from the Creator, Allah SWT. Moreover, the rules are a part of the wider systems of Islam that supports the Muslim community both socially and economically. Fixing the proportions and designating the family heirs ensures the family unit is maintained from one generation to the next irrespective of family disputes. Therefore the laws of Islamic inheritance help to circulate the wealth amongst the family members rather than allowing specific individuals to monopolise it. This follows the general underlying reasoning and goal of the Islamic economic system which is to distribute wealth throughout society.
Furthermore this removes any potential conflicts that arise amongst family members thus helping to preserve the relationship between kith and kin.
Islam’s inheritance laws guaranteed women property rights in the seventh century when much of the known world considered women barely human. Meanwhile, the ruling ‘to the male, a portion equal to that of two females’ is line with the obligation of husbands, sons and brothers to financially provide maintenance [Nafaqah] for the family which is enshrined in the economic system of Islam. Here balance is observed within the Shariah and it’s view towards men and women in society. They are not competitors to the same role, but rather partners and committed helpers with roles to help preserve and promote the family unit. Therefore the males receive twice the share in inheritance but are obligated to provide for their wives, mothers and sisters.
Allah (SWT) states:
“Let the rich man (dhu sa’atin) spend according to his means”. [At- Talaq: 7]
The word “dhu” is not used except in the masculine gender i.e. referring to the men. And Allah SWT stated:
“But the father of the child shall bear the cost of the mother’s food and clothing”. [Al-Baqarah: 233]
Therefore Allah SWT made it obligatory on the males to provide maintenance according to the societal norms for their family. However any wealth that the woman has even through her career is her money and she is not obliged to spend it on anyone else.
If the husbands or brothers are negligent in utilising their wealth properly then a judge can decide that the organisation and control over the finances falls within the control of the wife/mother/sister even though the man is still obliged to work, in fact the woman can be granted sole access to the funds.
Hind came to the Messenger of Allah (saw) and said, “O Messenger of Allah! Indeed Abu Sufyan is a miserly man. He does not provide me with the maintenance that my children and I need.” So the Messenger of Allah told her “Take that which suffices you and your children in a fitting manner (bil ma’roof).” [Agreed upon, narrated on the authority of Aisha (ra)]
In certain cases however Islam made the share of the woman the same as that of the man. Allah says in the Quran:
“If the man or woman whose inheritance is in question has left neither ascendants nor descendants, but has left a brother or a sister, each one of them receives a sixth; but if they were more than two, they share a third” [An- Nisa:12]
This is in respect of half-brothers and half-sisters through the same mother but different fathers and the ruling for the female in this regard is that her financial maintenance is not the responsibility of her half-brother and their shares of the inheritance are equal.
Thus we can conclude that far from being unjust and discriminatory Islamic inheritance laws fit in to a well-defined social and economic order set by Islam which helps to safeguard the family and guarantee the economic and societal rights and obligations of all citizens in the community.