ource: Fiqhi Ahkam and Maail in the Light of Quran and Hadith, Inheritance Iue: Volume 02: Page 233
All praie i due to Allah, and bleing and peace be upon the Meenger of Allah. To proceed!
Incident of collective death generally occur. When two or more individual who are heir to each other die at the ame time and it i not poible to determine who died firt and who died later, i.e., who became the heir and who the deceaed, 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, bu, airplane, train, etc., then there are five poible cenario for thi collective death incident.
Five cenario of Collective Death
✔ ① Multiple individual paed away, but it could not be determined who died firt and who died later. In thi cae, the deceaed will not be heir to each other; rather, each one' inheritance will be divided among their living heir, becaue the condition for omeone to be an heir i that they mut be alive at the time of their ancetor' death, and thi condition i miing here.
✔ ② If it i known that one peron died before the other, and there i no mitake or doubt about thi, then the peron who died later will unanimouly be the heir of the one who died firt, becaue it i neceary for the heir to be alive after the death of the ancetor, and thi condition i etablihed here.
✔ ③ ome individual died after other, but it could not be determined whoe death occurred firt and whoe later.
✔ ④ It wa known that o-and-o died firt and o-and-o later, but the order wa not remembered.
✔ ⑤ The occurrence of death wa not known in a timely manner, o it wa not known whether they all died imultaneouly or one after another.
In the lat three cae, there i room for probability, and in them, ijtihad with obervation and thought i neceary. There are two opinion among the cholar regarding thi.
Two Opinion of the cholar
❀ ① In the aforementioned lat three cae, the deceaed will not be heir to one another. Thi opinion i tranmitted from a group of the Companion of the Prophet, may Allah be pleaed with them all, including Hazrat Abu Bakr iddiq, may Allah be pleaed with him, Zaid bin Thabit, may Allah be pleaed with him, and Ibn Abba, may Allah be pleaed with him. The three Imam, namely Imam Abu Hanifa, may Allah have mercy on him, Imam Malik, may Allah have mercy on him, and Imam hafi'i, may Allah have mercy on him, alo hold thi view. And thi i alo in accordance with the view of Imam Ahmad, may Allah have mercy on him.
The reaon for thi i that one of the condition for inheriting i that the heir mut be alive after the death of the deceaed, and thi condition i not certainly etablihed here, but rather it i doubtful, while inheritance right are not etablihed on the bai of doubt. Furthermore, the victim of the Battle of Yamama, the Battle of iffin, and the Battle of Harrah were not made heir of one another.
❀ ② Each will be the heir of the other. Among the Companion of the Prophet, may Allah be pleaed with them all, Hazrat Umar ibn Khattab, may Allah be pleaed with him, and Ali, may Allah be pleaed with him, hold thi view. The apparent doctrine of Imam Ahmad, may Allah have mercy on him, i alo the ame.
The bai of thi opinion i that it i certain that each wa alive, and thi i the original principle. Therefore, the original ruling will be that he wa alive until after the death of the other. Alo, during the caliphate of ayyiduna Umar ibn Khattab, may Allah be pleaed with him, a plague pread in yria and people began to die one after another. The Prophet, peace be upon him, had ordered that they be made heir of one another.
The condition for their inheritance i that the heir do not dipute uch upiciou death, meaning that none of them hould claim that our deceaed died later, while none of them can provide evidence for their claim. If there i a dipute, the heir will take oath, but depite that, they will not become each other' heir.
According to thi view, the ditribution of inheritance will be uch that only the deceaed' own original property will be divided, not the property that he received from the inheritance of the peron who died with him. The detail of thi ummary i that in thi collective death, it will firt be aumed that each peron died firt, therefore hi peronal inheritance, i.e., original property, will be divided among hi living heir and thoe who died with him. However, the property that he received from thoe who died with him will only be divided among the living heir, o that no one become the heir of hi own property. Then the ame proce will be repeated, uch that it will be aumed that a peron died later, and he will be given a hare from the inheritance of the other deceaed a an heir in the ame manner a decribed above.
Preferred Opinion
In thi iue, the preferred opinion i the firt one, that i, thoe who die imultaneouly or multiple peron whoe order of death i unknown, will not be heir to each other, becaue inheritance right cannot be etablihed on the bai of probability and doubt. Wherea in thi event, conidering one peron' death a prior and another' a ubequent i baed olely on ignorance, and thi bai i not valid.
Alo, inheritance i given to a living peron o that they may benefit from the property after the deceaed, wherea here thi condition i abent. Furthermore, declaring them heir to each other lead to contradiction, in the ene that declaring omeone an heir mean they died later, and then declaring the inheritance of that peron to another deceaed mean that other peron died earlier. Declaring the ame peron both prior and ubequent in death i a contradiction.
According to the preferred opinion, the etate of the deceaed will only be given to thoe heir who are alive, and thoe who have died along with him will receive nothing. Thi practice i baed on certainty, not on doubt or upicion. And Allah know bet.
Explanation of Radd
The literal meaning of "Radd" i to return or give back. Turning away from the true religion i alo called "Irtidad" for thi reaon. In the terminology of inheritance, "Radd" mean that after the hare of the fixed heir have been ditributed, if there are any remaining hare and no reiduary heir (Aabah) exit, then thee remaining hare are returned to the fixed heir in proportion to their original hare.
Allah Almighty ha precribed pecific hare for certain heir, uch a half, quarter, eighth, two-third, and one-ixth.
In addition, the method of ditribution ha alo been explained for reiduarie (Aabah), whether male or female. The Prophetic guidance i:
"أَلْحِقُوا الْفَرَائِضَ بِأَهْلِهَا، فَمَا بَقِيَ فَهُوَ لأَوْلَى رَجُلٍ ذَكَرٍ"
"Give the fixed hare to the heir entitled to them. Then whatever remain, give it to the nearet male relative ('aabah)."
Reference: ahih al-Bukhari, Al-Fara'id, Chapter on Inheritance of on and Daughter, Hadith 6732. ahih Mulim, Al-Fara'id, Chapter on Grandchildren and Fixed hare, then whatever remain to the nearet male relative, Hadith 1615
Thi hadith explain the command of the Holy Quran and alo determine the order of ditribution of inheritance among the two type of heir. Therefore, when both the fixed-hare heir (Ahab al-Furood) and the nearet male relative ('Aabah) are preent, the ruling in light of thi hadith i clear: firt, the fixed-hare heir hould be given their precribed hare, and then whatever remain of the inheritance hould be given to the 'Aabah. If nothing remain, the 'Aabah will be deprived. And if only the 'Aabah are the heir, then they will divide the entire etate among themelve according to their number.
The problem arie in the cae when, after giving the fixed hare to the heir entitled to pecific portion (Ahab al-Fara'id), ome part of the inheritance till remain, and there i no agnate (Aaba) preent to inherit the remaining etate. In thi cae, the olution i that the remaining inheritance will alo be reditributed among the Ahab al-Fara'id according to their hare again; however, if either the huband or wife i preent, then no reditribution will occur on them. The argument for thi are a follow:
Allah Almighty ay:
﴿وَأُولُوا الأَرحامِ بَعضُهُم أَولىٰ بِبَعضٍ فى كِتـٰبِ اللَّهِ...﴿٦﴾... سورة الاحزاب
"And among the relative are ome cloer to each other in the decree of Allah."
Reference: Al-Anfal:8/75
ince the Ahab al-Fara'id are alo relative of the deceaed, they have a greater right to the remaining inheritance, apart from the Aaba, compared to other.
The Prophet Muhammad (peace be upon him) aid:
"وَمَنْ تَرَكَ مَالاً فَهُوَ لِوَرَثَتِهِ "
"The property left behind belong to the heir."
Reference: ahih al-Bukhari, Al-Kafalah, Chapter on Debt, Hadith 2298 and ahih Mulim, Al-Fara'id, Chapter on Whoever Leave Property, Hadith 1619, wording a given
Thi Prophetic ruling include all the wealth left by the deceaed, even the wealth remaining after giving the hare to the heir entitled to fixed hare (Aḥāb al-Farāʾiḍ) fall under thi ruling. Therefore, when there are no 'Aaba (reiduary heir), the Aḥāb al-Farāʾiḍ are more entitled to the deceaed' wealth.
In a noble hadith, it i mentioned that when ayyidnā aʿd ibn Abī Waqqā (may Allah be pleaed with him) wa ill, the Meenger of Allah (peace and bleing be upon him) came to viit him. He aid: O Meenger of Allah! The only heir to my inheritance i my one daughter. ayyidnā aʿd (may Allah be pleaed with him) declared hi ole daughter a the heir to the entire inheritance, and the Prophet (peace and bleing be upon him) did not reject thi tatement. If thi were incorrect, the Prophet (peace and bleing be upon him) would certainly have refuted it. Thu, from thi hadith it i etablihed that if the owner of the fixed hare receive hi precribed portion and there remain ome inheritance left, and there i no reiduary heir ('Aaba), then the fixed-hare heir will take the remaining wealth a well, and thi i what i called "Radd" (return).
All heir of fixed hare are ubject to excluion except for poue, becaue poue are never relative by lineage, therefore they are not included in the general ruling of Allah Almighty' command:
﴿وَأُولُوا الأَرحامِ بَعضُهُم أَولىٰ بِبَعضٍ فى كِتـٰبِ اللَّهِ...﴿٦﴾... سورة الاحزاب
Reference: Al-Anfal:8/75
cholar agree that excluion doe not apply to poue. However, regarding the narration about ayyiduna Uthman bin Affan (may Allah be pleaed with him) that he excluded a huband, it i poible that he gave it for ome other reaon beide excluion, 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" refer to every relative who i neither a fixed-hare heir nor an agnate heir. There are generally four type of Dhawi Arham:
✔ ① Thoe relative who are related to the deceaed, uch a the children of daughter, the children of granddaughter, and thoe decending from them.
✔ ② Thoe relative to whom the deceaed i related, uch a the broken ancetor (Jadd Faid), meaning the mother' father, the paternal grandmother' father, and the broken grandmother (Jaddah Faidah), meaning the maternal grandfather.
✔ ③ Thoe relative who are related to the deceaed from the parent' ide, uch a: daughter of iter, i.e., nephew and niece, daughter of brother, i.e., niece, children of paternal half-brother, and every peron below them who i related to the deceaed through the ame connection.
✔ ④ Thoe relative who are related to the deceaed from the grandfather, maternal grandfather, grandmother, or maternal grandmother' ide, for example: paternal uncle, paternal aunt, daughter of paternal uncle, maternal uncle, maternal aunt, even if ditant, and their children.
✿ Note: All thee mentioned heir, and other who are related to the deceaed through the ame connection, will be counted among the relative by blood (ذوی الارحام).
Relative by blood (ذوی الارحام) will be heir only when there i no obligatory heir (صاحبِ فرض) and no agnate (عصبہ) other than the poue. The evidence for thi are a follow:
Allah Almighty ay:
﴿وَأُولُوا الأَرحامِ بَعضُهُم أَولىٰ بِبَعضٍ فى كِتـٰبِ اللَّهِ...﴿٦﴾... سورة الاحزاب
"And among the relative by blood, ome are cloer to each other in the decree of Allah."
Reference: Al-Anfal: 8/75
Allah Almighty ha another general command:
﴿لِلرِّجالِ نَصيبٌ مِمّا تَرَكَ الوٰلِدانِ وَالأَقرَبونَ وَلِلنِّساءِ نَصيبٌ مِمّا تَرَكَ الوٰلِدانِ وَالأَقرَبونَ...﴿٧﴾... سورة النساء
"Men and women have a hare in the inheritance from parent and relative."
Reference: An-Nia:4/7
Thee vere mention inheritance for common men and women, whether they are obligatory heir, agnate, or relative.
The one who claim pecification in the vere bear the burden of proof.
The Prophet Muhammad (peace be upon him) aid:
"الْخَالُ وَارِثُ مَنْ لا وَارِثَ لَهُ "
"If a peron ha no (obligatory or agnate) heir, hi maternal uncle i hi heir."
Reference: unan Abi Dawood, Al-Fara'id, chapter on inheritance of relative, Hadith 2899 and Jami' at-Tirmidhi, Al-Fara'id, chapter on inheritance of maternal uncle, Hadith 2104
The reaon for the indication i that the Prophet (peace be upon him) declared the maternal uncle of a deceaed peron, who ha no obligatory or agnate heir, a the heir, even though the maternal uncle i among the relative. Therefore, the noble hadith applie to other relative a well, like the maternal uncle.
The above argument are from thoe who advocate making the relative (ذوی الارحام) heir. Thi wa alo the opinion of ome Companion of the Prophet, may Allah be pleaed with them all, including ayyiduna Umar, may Allah be pleaed with him, and Ali, may Allah be pleaed with him. The Hanbali and Hanafi alo follow thi chool of thought. The modern opinion of the hafi'i chool i alo the ame, provided that the management of Bayt al-Mal (public treaury) i not involved.
Two Famou Method of Ditribution of Inheritance Among Relative (ذوی الارحام)
Thoe who advocate making the relative heir differ among themelve regarding the method of ditribution. Accordingly, there are two famou opinion among cholar on thi matter:
✔ ① The firt opinion i "conidering them a ubtitute." According to thi opinion, the relative by blood (ذوی الارحام) are not direct heir themelve, but they are conidered ubtitute for thoe heir and agnate whoe relationhip with the deceaed i etablihed through them, and then the hare i given to thoe heir. For example: the children of daughter and the children of granddaughter will be ubtitute for their mother. The paternal uncle and paternal aunt will be ubtitute for the father. imilarly, the maternal uncle, maternal aunt, and maternal grandfather will be ubtitute for the mother. And the niece and grandniece of brother will be ubtitute for their father. Accordingly, by analogy.
✔ ② The econd opinion i that the ditribution of inheritance among the relative by blood (ذوی الارحام) will be like that of agnate, and it bai will be "the nearer over the farther" (الاقرب فالا قرب). And Allah know bet.
Explanation of the inheritance of a divorced woman
It i clear that Allah Almighty ha made the marriage contract a reaon for becoming an heir. The Divine command i:
﴿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 wive leave behind no children, then half of what they leave i your. But if they have children, then for you i a quarter of what they leave after any bequet they may have made or debt. And for them i a quarter of what you leave if you leave no children. But if you leave children, then for them i an eighth of what you leave after any bequet you may have made or debt."
Reference: An-Nia:4:12
A long a the marriage contract remain valid, the right of inheritance alo remain, unle an impediment to inheritance arie.
When the bond of marriage i completely evered, and thi i in the cae of a final divorce (ṭalāq-e-bā'in), the right of inheritance end, becaue when the caue no longer exit, the effect alo ceae. However, in the cae 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 jurit have etablihed a permanent chapter in the book of inheritance. There are generally three type of divorced women:
✔ ① Revocable divorced woman (Muṭallaqah Raj'iyyah): A woman who ha been given a revocable divorce. The ruling i the ame whether the divorce wa given when the huband wa in good health or in a tate of terminal illne.
✔ ② Irrevocably divorced woman (Muṭallaqah Bā'inah): A woman who ha been given uch a divorce while the huband wa in good health, in which the right of reconciliation doe not remain.
✔ ③ Irrevocably divorced woman (Muṭallaqah Bā'inah): That i, a woman who ha been given uch a divorce during the huband' terminal illne, in which the right of reconciliation doe not remain.
The firt type of woman unanimouly ha the right to inheritance, provided that the one who gave the divorce ha paed away and the divorced woman i within her waiting period ('iddah) of divorce. The reaon for thi i that a long a the divorced woman i in her 'iddah, he i till conidered the wife of the one who gave the divorce, and therefore he will alo have the right of a wife.
A woman whom the huband ha given a final divorce (ṭalāq-e-bā'in) due to health reaon will not unanimouly be an heir, becaue a final divorce end the marital relationhip. In thi cae, the huband cannot be accued of giving divorce to deprive the wife of inheritance. imilarly, if a man give hi wife a final divorce during an illne that doe not carry the rik of death, the ame ruling applie.
If a woman i given a final divorce (ṭalāq-e-bā'in) by her huband during hi terminal illne, and there i no accuation that the wife wa unjutly deprived of inheritance, then uch a woman will not be an heir. However, if the huband i accued of giving the final divorce during hi terminal illne with the intention of depriving her of inheritance, then the divorced woman, whether he i in her waiting period (ʿiddah) or ha completed it, will be an heir, provided that he ha not married elewhere or become an apotate.
In the cae of irrevocable divorce during the illne of death, when there may be upicion on the huband, the evidence for making the divorced woman an heir i that ayyiduna Uthman رضي الله تعالى عنه declared the wife of ayyiduna Abdur Rahman bin Awf رضي الله تعالى عنه a an heir when he gave an irrevocable divorce during the illne of death. None of the Companion رضي الله عنهم اجمعين oppoed thi famou ruling. Moreover, thi cloe the door to corruption, o that a peron doe not deprive hi wife of her inheritance right at the time of death. Therefore, it i not correct to ay that a divorced woman with an irrevocable divorce only ha the right to her huband' inheritance during the 'iddah period, and not after it. And Allah know bet.
Mutual Inheritance of poue After Marriage Contract
After the marriage contract i concluded, the poue become heir to each other, whether the bride ha been ent off or not, and whether they have been alone together or not, becaue the command of the Noble Vere i general. The Divine command i:
﴿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 wive and have no children, then half (of the inheritance) i for you. And if they have children, then from what they leave behind, a quarter i for you, after the payment of any bequet they have made or debt. And from what you leave behind, a quarter i for them if you have no children. And if you have children, then they will receive one-eighth of your inheritance, after the bequet you have made and the payment of debt."
Reference: An-Nia:4:12
The reaon for thi i that the bond of marriage i very important, trutworthy, and acred, upon which many ruling are etablihed, and great widom depend on it. Allah Almighty ha precribed a hare from the wealth of one another after death for each peron, a the right of their relative. Thi alo contain the widom that everyone hould regard each other with repect and honor.
All thee commandment of the religion of Ilam are full of goodne and bleing. May Allah keep u alive on thi and grant u death upon it.
ھذا ما عندی والله اعلم بالصواب
