Source: Fiqhi Ahkam and Masail in the Light of Quran and Hadith, Inheritance Issues: Volume 02: Page 233
All praise is due to Allah, and blessings and peace be upon the Messenger of Allah. To proceed!
Incidents of collective death generally occur. When two or more individuals who are heirs to each other die at the same time and it is not possible to determine who died first and who died later, i.e., who became the heir and who the deceased, for example: buried under a wall, drowned in water, burned in fire, caught in a plague, killed in a battle, or died in an accident involving a car, bus, airplane, train, etc., then there are five possible scenarios for this collective death incident.
Five Scenarios of Collective Death
✔ ① Multiple individuals passed away, but it could not be determined who died first and who died later. In this case, the deceased will not be heirs to each other; rather, each one's inheritance will be divided among their living heirs, because the condition for someone to be an heir is that they must be alive at the time of their ancestor's death, and this condition is missing here.
✔ ② If it is known that one person died before the other, and there is no mistake or doubt about this, then the person who died later will unanimously be the heir of the one who died first, because it is necessary for the heir to be alive after the death of the ancestor, and this condition is established here.
✔ ③ Some individuals died after others, but it could not be determined whose death occurred first and whose later.
✔ ④ It was known that so-and-so died first and so-and-so later, but the order was not remembered.
✔ ⑤ The occurrence of death was not known in a timely manner, so it was not known whether they all died simultaneously or one after another.
In the last three cases, there is room for probability, and in them, ijtihad with observation and thought is necessary. There are two opinions among the scholars regarding this.
Two Opinions of the Scholars
❀ ① In the aforementioned last three cases, the deceased will not be heirs to one another. This opinion is transmitted from a group of the Companions of the Prophet, may Allah be pleased with them all, including Hazrat Abu Bakr Siddiq, may Allah be pleased with him, Zaid bin Thabit, may Allah be pleased with him, and Ibn Abbas, may Allah be pleased with him. The three Imams, namely Imam Abu Hanifa, may Allah have mercy on him, Imam Malik, may Allah have mercy on him, and Imam Shafi'i, may Allah have mercy on him, also hold this view. And this is also in accordance with the view of Imam Ahmad, may Allah have mercy on him.
The reason for this is that one of the conditions for inheriting is that the heir must be alive after the death of the deceased, and this condition is not certainly established here, but rather it is doubtful, while inheritance rights are not established on the basis of doubt. Furthermore, the victims of the Battle of Yamama, the Battle of Siffin, and the Battle of Harrah were not made heirs of one another.
❀ ② Each will be the heir of the other. Among the Companions of the Prophet, may Allah be pleased with them all, Hazrat Umar ibn Khattab, may Allah be pleased with him, and Ali, may Allah be pleased with him, hold this view. The apparent doctrine of Imam Ahmad, may Allah have mercy on him, is also the same.
The basis of this opinion is that it is certain that each was alive, and this is the original principle. Therefore, the original ruling will be that he was alive until after the death of the other. Also, during the caliphate of Sayyiduna Umar ibn Khattab, may Allah be pleased with him, a plague spread in Syria and people began to die one after another. The Prophet, peace be upon him, had ordered that they be made heirs of one another.
The condition for their inheritance is that the heirs do not dispute such suspicious deaths, meaning that none of them should claim that our deceased died later, while none of them can provide evidence for their claim. If there is a dispute, the heirs will take oaths, but despite that, they will not become each other's heirs.
According to this view, the distribution of inheritance will be such that only the deceased's own original property will be divided, not the property that he received from the inheritance of the person who died with him. The detail of this summary is that in this collective death, it will first be assumed that each person died first, therefore his personal inheritance, i.e., original property, will be divided among his living heirs and those who died with him. However, the property that he received from those who died with him will only be divided among the living heirs, so that no one becomes the heir of his own property. Then the same process will be repeated, such that it will be assumed that a person died later, and he will be given a share from the inheritance of the other deceased as an heir in the same manner as described above.
Preferred Opinion
In this issue, the preferred opinion is the first one, that is, those who die simultaneously or multiple persons whose order of death is unknown, will not be heirs to each other, because inheritance rights cannot be established on the basis of probability and doubt. Whereas in this event, considering one person's death as prior and another's as subsequent is based solely on ignorance, and this basis is not valid.
Also, inheritance is given to a living person so that they may benefit from the property after the deceased, whereas here this condition is absent. Furthermore, declaring them heirs to each other leads to contradiction, in the sense that declaring someone an heir means they died later, and then declaring the inheritance of that person to another deceased means that other person died earlier. Declaring the same person both prior and subsequent in death is a contradiction.
According to the preferred opinion, the estate of the deceased will only be given to those heirs who are alive, and those who have died along with him will receive nothing. This practice is based on certainty, not on doubt or suspicion. And Allah knows best.
Explanation of Radd
The literal meaning of "Radd" is to return or give back. Turning away from the true religion is also called "Irtidad" for this reason. In the terminology of inheritance, "Radd" means that after the shares of the fixed heirs have been distributed, if there are any remaining shares and no residuary heir (Asabah) exists, then these remaining shares are returned to the fixed heirs in proportion to their original shares.
Allah Almighty has prescribed specific shares for certain heirs, such as half, quarter, eighth, two-thirds, and one-sixth.
In addition, the method of distribution has also been explained for residuaries (Asabah), whether male or female. The Prophetic guidance is: __ARABIC_N__
"أَلْحِقُوا الْفَرَائِضَ بِأَهْلِهَا، فَمَا بَقِيَ فَهُوَ لأَوْلَى رَجُلٍ ذَكَرٍ"
"Give the fixed shares to the heirs entitled to them. Then whatever remains, give it to the nearest male relative ('asabah)."
Reference: Sahih al-Bukhari, Al-Fara'id, Chapter on Inheritance of Son and Daughter, Hadith 6732. Sahih Muslim, Al-Fara'id, Chapter on Grandchildren and Fixed Shares, then whatever remains to the nearest male relative, Hadith 1615
This hadith explains the command of the Holy Quran and also determines the order of distribution of inheritance among the two types of heirs. Therefore, when both the fixed-share heirs (Ashab al-Furood) and the nearest male relatives ('Asabah) are present, the ruling in light of this hadith is clear: first, the fixed-share heirs should be given their prescribed shares, and then whatever remains of the inheritance should be given to the 'Asabah. If nothing remains, the 'Asabah will be deprived. And if only the 'Asabah are the heirs, then they will divide the entire estate among themselves according to their numbers.
The problem arises in the case when, after giving the fixed shares to the heirs entitled to specific portions (Ashab al-Fara'id), some part of the inheritance still remains, and there is no agnate (Asaba) present to inherit the remaining estate. In this case, the solution is that the remaining inheritance will also be redistributed among the Ashab al-Fara'id according to their shares again; however, if either the husband or wife is present, then no redistribution will occur on them. The arguments for this are as follows:
Allah Almighty says:
﴿وَأُولُوا الأَرحامِ بَعضُهُم أَولىٰ بِبَعضٍ فى كِتـٰبِ اللَّهِ...﴿٦﴾... سورة الاحزاب
"And among the relatives are some closer to each other in the decree of Allah."
Reference: Al-Anfal:8/75
Since the Ashab al-Fara'id are also relatives of the deceased, they have a greater right to the remaining inheritance, apart from the Asaba, compared to others.
The Prophet Muhammad (peace be upon him) said:
"وَمَنْ تَرَكَ مَالاً فَهُوَ لِوَرَثَتِهِ "
"The property left behind belongs to the heirs."
Reference: Sahih al-Bukhari, Al-Kafalah, Chapter on Debt, Hadith 2298 and Sahih Muslim, Al-Fara'id, Chapter on Whoever Leaves Property, Hadith 1619, wording as given
This Prophetic ruling includes all the wealth left by the deceased, even the wealth remaining after giving the shares to the heirs entitled to fixed shares (Asḥāb al-Farāʾiḍ) falls under this ruling. Therefore, when there are no 'Asaba (residuary heirs), the Asḥāb al-Farāʾiḍ are more entitled to the deceased's wealth.
In a noble hadith, it is mentioned that when Sayyidnā Saʿd ibn Abī Waqqās (may Allah be pleased with him) was ill, the Messenger of Allah (peace and blessings be upon him) came to visit him. He said: O Messenger of Allah! The only heir to my inheritance is my one daughter. Sayyidnā Saʿd (may Allah be pleased with him) declared his sole daughter as the heir to the entire inheritance, and the Prophet (peace and blessings be upon him) did not reject this statement. If this were incorrect, the Prophet (peace and blessings be upon him) would certainly have refuted it. Thus, from this hadith it is established that if the owner of the fixed share receives his prescribed portion and there remains some inheritance left, and there is no residuary heir ('Asaba), then the fixed-share heir will take the remaining wealth as well, and this is what is called "Radd" (return).
All heirs of fixed shares are subject to exclusion except for spouses, because spouses are never relatives by lineage, therefore they are not included in the general ruling of Allah Almighty's command:
﴿وَأُولُوا الأَرحامِ بَعضُهُم أَولىٰ بِبَعضٍ فى كِتـٰبِ اللَّهِ...﴿٦﴾... سورة الاحزاب
Reference: Al-Anfal:8/75
Scholars agree that exclusion does not apply to spouses. However, regarding the narration about Sayyiduna Uthman bin Affan (may Allah be pleased with him) that he excluded a husband, it is possible that he gave it for some other reason besides exclusion, for example: he might have been a relative by blood or a dhawi arham (relative by womb).
Explanation of the Inheritance of Dhawi Arham
In the terminology of inheritance knowledge, "Dhi Rahm" refers to every relative who is neither a fixed-share heir nor an agnate heir. There are generally four types of Dhawi Arham:
✔ ① Those relatives who are related to the deceased, such as the children of daughters, the children of granddaughters, and those descending from them.
✔ ② Those relatives to whom the deceased is related, such as the broken ancestor (Jadd Fasid), meaning the mother's father, the paternal grandmother's father, and the broken grandmother (Jaddah Fasidah), meaning the maternal grandfather.
✔ ③ Those relatives who are related to the deceased from the parents' side, such as: daughters of sisters, i.e., nephews and nieces, daughters of brothers, i.e., nieces, children of paternal half-brothers, and every person below them who is related to the deceased through the same connection.
✔ ④ Those relatives who are related to the deceased from the grandfather, maternal grandfather, grandmother, or maternal grandmother's side, for example: paternal uncles, paternal aunts, daughters of paternal uncles, maternal uncles, maternal aunts, even if distant, and their children.
✿ Note: All these mentioned heirs, and others who are related to the deceased through the same connections, will be counted among the relatives by blood (ذوی الارحام).
Relatives by blood (ذوی الارحام) will be heirs only when there is no obligatory heir (صاحبِ فرض) and no agnate (عصبہ) other than the spouses. The evidences for this are as follows:
Allah Almighty says:
﴿وَأُولُوا الأَرحامِ بَعضُهُم أَولىٰ بِبَعضٍ فى كِتـٰبِ اللَّهِ...﴿٦﴾... سورة الاحزاب
"And among the relatives by blood, some are closer to each other in the decree of Allah."
Reference: Al-Anfal: 8/75
Allah Almighty has another general command:
﴿لِلرِّجالِ نَصيبٌ مِمّا تَرَكَ الوٰلِدانِ وَالأَقرَبونَ وَلِلنِّساءِ نَصيبٌ مِمّا تَرَكَ الوٰلِدانِ وَالأَقرَبونَ...﴿٧﴾... سورة النساء
"Men and women have a share in the inheritance from parents and relatives."
Reference: An-Nisa:4/7
These verses mention inheritance for common men and women, whether they are obligatory heirs, agnates, or relatives.
The one who claims specification in the verse bears the burden of proof.
The Prophet Muhammad (peace be upon him) said:
"الْخَالُ وَارِثُ مَنْ لا وَارِثَ لَهُ "
"If a person has no (obligatory or agnate) heir, his maternal uncle is his heir."
Reference: Sunan Abi Dawood, Al-Fara'id, chapter on inheritance of relatives, Hadith 2899 and Jami' at-Tirmidhi, Al-Fara'id, chapter on inheritance of maternal uncle, Hadith 2104
The reason for the indication is that the Prophet (peace be upon him) declared the maternal uncle of a deceased person, who has no obligatory or agnate heir, as the heir, even though the maternal uncle is among the relatives. Therefore, the noble hadith applies to other relatives as well, like the maternal uncle.
The above arguments are from those who advocate making the relatives (ذوی الارحام) heirs. This was also the opinion of some Companions of the Prophet, may Allah be pleased with them all, including Sayyiduna Umar, may Allah be pleased with him, and Ali, may Allah be pleased with him. The Hanbalis and Hanafis also follow this school of thought. The modern opinion of the Shafi'i school is also the same, provided that the management of Bayt al-Mal (public treasury) is not involved.
Two Famous Methods of Distribution of Inheritance Among Relatives (ذوی الارحام)
Those who advocate making the relatives heirs differ among themselves regarding the method of distribution. Accordingly, there are two famous opinions among scholars on this matter:
✔ ① The first opinion is "considering them as substitutes." According to this opinion, the relatives by blood (ذوی الارحام) are not direct heirs themselves, but they are considered substitutes for those heirs and agnates whose relationship with the deceased is established through them, and then the share is given to those heirs. For example: the children of daughters and the children of granddaughters will be substitutes for their mothers. The paternal uncle and paternal aunt will be substitutes for the father. Similarly, the maternal uncle, maternal aunts, and maternal grandfather will be substitutes for the mother. And the nieces and grandnieces of brothers will be substitutes for their fathers. Accordingly, by analogy.
✔ ② The second opinion is that the distribution of inheritance among the relatives by blood (ذوی الارحام) will be like that of agnates, and its basis will be "the nearer over the farther" (الاقرب فالا قرب). And Allah knows best.
Explanation of the inheritance of a divorced woman
It is clear that Allah Almighty has made the marriage contract a reason for becoming an heir. The Divine command is:
﴿وَلَكُم نِصفُ ما تَرَكَ أَزوٰجُكُم إِن لَم يَكُن لَهُنَّ وَلَدٌ فَإِن كانَ لَهُنَّ وَلَدٌ فَلَكُمُ الرُّبُعُ مِمّا تَرَكنَ مِن بَعدِ وَصِيَّةٍ يوصينَ بِها أَو دَينٍ وَلَهُنَّ الرُّبُعُ مِمّا تَرَكتُم إِن لَم يَكُن لَكُم وَلَدٌ فَإِن كانَ لَكُم وَلَدٌ فَلَهُنَّ الثُّمُنُ مِمّا تَرَكتُم مِن بَعدِ وَصِيَّةٍ توصونَ بِها أَو دَينٍ...﴿١٢﴾... سورةالنساء
"If your wives leave behind no children, then half of what they leave is yours. But if they have children, then for you is a quarter of what they leave after any bequest they may have made or debt. And for them is a quarter of what you leave if you leave no children. But if you leave children, then for them is an eighth of what you leave after any bequest you may have made or debt."
Reference: An-Nisa:4:12
As long as the marriage contract remains valid, the right of inheritance also remains, unless an impediment to inheritance arises.
When the bond of marriage is completely severed, and this is in the case of a final divorce (ṭalāq-e-bā'in), the right of inheritance ends, because when the cause no longer exists, the effect also ceases. However, in the case of a revocable divorce (ṭalāq-e-raj'ī), the woman will not be deprived of the right of inheritance during the 'iddah period. To explain the inheritance of a divorced woman, the jurists have established a permanent chapter in the books of inheritance. There are generally three types of divorced women:
✔ ① Revocable divorced woman (Muṭallaqah Raj'iyyah): A woman who has been given a revocable divorce. The ruling is the same whether the divorce was given when the husband was in good health or in a state of terminal illness.
✔ ② Irrevocably divorced woman (Muṭallaqah Bā'inah): A woman who has been given such a divorce while the husband was in good health, in which the right of reconciliation does not remain.
✔ ③ Irrevocably divorced woman (Muṭallaqah Bā'inah): That is, a woman who has been given such a divorce during the husband's terminal illness, in which the right of reconciliation does not remain.
The first type of woman unanimously has the right to inheritance, provided that the one who gave the divorce has passed away and the divorced woman is within her waiting period ('iddah) of divorce. The reason for this is that as long as the divorced woman is in her 'iddah, she is still considered the wife of the one who gave the divorce, and therefore she will also have the rights of a wife.
A woman whom the husband has given a final divorce (ṭalāq-e-bā'in) due to health reasons will not unanimously be an heir, because a final divorce ends the marital relationship. In this case, the husband cannot be accused of giving divorce to deprive the wife of inheritance. Similarly, if a man gives his wife a final divorce during an illness that does not carry the risk of death, the same ruling applies.
If a woman is given a final divorce (ṭalāq-e-bā'in) by her husband during his terminal illness, and there is no accusation that the wife was unjustly deprived of inheritance, then such a woman will not be an heir. However, if the husband is accused of giving the final divorce during his terminal illness with the intention of depriving her of inheritance, then the divorced woman, whether she is in her waiting period (ʿiddah) or has completed it, will be an heir, provided that she has not married elsewhere or become an apostate.
In the case of irrevocable divorce during the illness of death, when there may be suspicion on the husband, the evidence for making the divorced woman an heir is that Sayyiduna Uthman رضي الله تعالى عنه declared the wife of Sayyiduna Abdur Rahman bin Awf رضي الله تعالى عنه as an heir when he gave an irrevocable divorce during the illness of death. None of the Companions رضي الله عنهم اجمعين opposed this famous ruling. Moreover, this closes the door to corruption, so that a person does not deprive his wife of her inheritance rights at the time of death. Therefore, it is not correct to say that a divorced woman with an irrevocable divorce only has the right to her husband's inheritance during the 'iddah period, and not after it. And Allah knows best.
Mutual Inheritance of Spouses After Marriage Contract
After the marriage contract is concluded, the spouses become heirs to each other, whether the bride has been sent off or not, and whether they have been alone together or not, because the command of the Noble Verse is general. The Divine command is:
﴿وَلَكُم نِصفُ ما تَرَكَ أَزوٰجُكُم إِن لَم يَكُن لَهُنَّ وَلَدٌ فَإِن كانَ لَهُنَّ وَلَدٌ فَلَكُمُ الرُّبُعُ مِمّا تَرَكنَ مِن بَعدِ وَصِيَّةٍ يوصينَ بِها أَو دَينٍ وَلَهُنَّ الرُّبُعُ مِمّا تَرَكتُم إِن لَم يَكُن لَكُم وَلَدٌ فَإِن كانَ لَكُم وَلَدٌ فَلَهُنَّ الثُّمُنُ مِمّا تَرَكتُم مِن بَعدِ وَصِيَّةٍ توصونَ بِها أَو دَينٍ...﴿١٢﴾... سورةالنساء
"If you leave behind wives and have no children, then half (of the inheritance) is for you. And if they have children, then from what they leave behind, a quarter is for you, after the payment of any bequests they have made or debts. And from what you leave behind, a quarter is for them if you have no children. And if you have children, then they will receive one-eighth of your inheritance, after the bequests you have made and the payment of debts."
Reference: An-Nisa:4:12
The reason for this is that the bond of marriage is very important, trustworthy, and sacred, upon which many rulings are established, and great wisdoms depend on it. Allah Almighty has prescribed a share from the wealth of one another after death for each person, as the right of their relatives. This also contains the wisdom that everyone should regard each other with respect and honor.
All these commandments of the religion of Islam are full of goodness and blessings. May Allah keep us alive on this and grant us death upon it.
ھذا ما عندی والله اعلم بالصواب
