Source: Fiqhi Rulings and Issues in the Light of Quran and Hadith, Inheritance Issues: Volume 02: Page 241
Praise be to Allah, and prayers and peace be upon the Messenger of Allah. To proceed!
Difference in religion means that the deceased and the heir both follow different religions and sects. Under this topic, two issues are very important.
① Making a disbeliever the heir of a Muslim and a Muslim the heir of a disbeliever
There are four different opinions among scholars on this issue:
✔ 1. A Muslim and a disbeliever cannot be heirs to each other at all. This is the opinion of most scholars, because the Prophet Muhammad (peace be upon him) said:
" لا يَرِثُ الْمُسْلِمُ الْكَافِرَ وَلا الْكَافِرُ الْمُسْلِمَ "
"A Muslim does not inherit from a disbeliever, nor does a disbeliever inherit from a Muslim."
Reference: Sahih al-Bukhari, Inheritance, Chapter: A Muslim does not inherit from a disbeliever Muslim, Hadith 6764. And Sahih Muslim, Inheritance, Chapter: A Muslim inherits from a disbeliever and a disbeliever does not inherit from a Muslim, Hadith 1614
✔ 2. A Muslim and a disbeliever will not be heirs to each other, but in the case of "Wala’" (loyalty), they will be heirs, meaning the one who frees a slave will have the Wala’ of the freed one, i.e., the inheritance, even if one party is a disbeliever. The noble hadith states:
"لا يرث المسلم النصراني؛ إلا أن يكون عبده أو أمته"
"A Muslim will not be the heir of a Christian except that he (the freed person) is his slave or maid."
Reference: (Weak) Sunan al-Daraqutni 4/41. Hadith 4036. And it is stated that the Mawkuf is authentic. Arwa al-Ghalil 6/155. Hadith 1715
From this noble hadith, it is understood that in the case of "Wala," the freed person will be the heir of the one who freed him, even if both have different religions.
✔ 3. If a non-Muslim relative becomes Muslim after the death of a Muslim but before the distribution of the inheritance, then he will be the heir. Accordingly, the hadith states:
"كُلُّ قَسْمٍ قُسِمَ فِي الْجَاهِلِيَّةِ فَهُوَ عَلَى مَا قُسِمَ لَهُ وَكُلُّ قَسْمٍ أَدْرَكَهُ الإِسْلاَمُ فَهُوَ عَلَى قَسْمِ الإِسْلاَمِ "
"The division that took place during the time of ignorance will be maintained, and the division that takes place during the time of Islam will be according to the laws of Islam."
Reference: Sunan Abu Dawood, Al-Fara'id, Chapter on who is Muslim regarding inheritance, Hadith: 2014. For details on this issue, see "Tafheem al-Mawarith" (Saarim)
✔ 4. A Muslim will be the heir of a non-Muslim, but a non-Muslim will not be the heir of a Muslim, because the hadith states:
"الإسلام يزيد ولا ينقص"
"Islam increases and does not decrease."
Reference: (Weak) Sunan Abu Dawood, Al-Fara'id, Chapter on whether a Muslim inherits from a non-Muslim, Hadith 2912
Therefore, if a Muslim inherits from a disbeliever, there is benefit in it and the requirement of the hadith is fulfilled, whereas not receiving a share results in loss.
Among the mentioned opinions, the first opinion is stronger because its evidence is correct and explicit compared to the other opinions
Reference: Like the first opinion, the second opinion is also applicable because it relates to a specific inheritance called "Wala’". Thus, just as the narration presented in the second opinion supports the first opinion, it also establishes the validity of the second opinion. In short, the narration "A Muslim does not inherit" supports both opinions. (Saarim)
.② Making a disbeliever the heir of a disbeliever
There are two situations in this issue:
✔ 1. The testator and the heir are of the same religion, for example: both are Jewish or both are Christian. In this case, they will inherit from each other, and there is no disagreement among scholars on this.
✔ 2. The religion of the deceased and the heir both are different, for example: one is Jewish and the other Christian, or vice versa, or one is Magian and the other idolater, or vice versa. In this case, there is a difference of opinion among scholars regarding the right of inheritance.
The basis of this difference is whether disbelief is considered one single community or whether different religions are given separate statuses. The following are the statements of the Imams on this matter:
❀ ① Disbelief is one single community, whether it is Judaism, Christianity, Magianism, or idolatry, therefore they will inherit from each other, provided that they live in the same country
Reference: this condition is disregarded
, because the relevant Shariah texts are general in this regard, and without any specification, it is not permissible to restrict this generality, except for what the Lawgiver Himself has exempted. Allah Almighty says:﴿وَالَّذينَ كَفَروا بَعضُهُم أَولِياءُ بَعضٍ ...﴿٧٣﴾... سورةالانفال
"Disbelievers are allies of one another."
Reference: Al-Anfal:8/73
This is the view of the Hanafis and Shafi'is, and a narration to this effect is also reported from the Hanbalis.
❀ ② There are three different sects of disbelief: Judaism, Christianity, and the other remaining disbelieving sects are the third sect, because the first two categories belong to the People of the Book, while the third category does not have any divine scripture. Therefore, a Jew or a Christian, or any one of them, will not be the heir of a Magian or an idolater.
❀ ③ There are multiple sects of disbelief, and a person from one sect will not be the heir of a person from another sect. The proof of this is the statement of the Messenger of Allah, peace be upon him:
" لَا يَتَوَارَثُ أَهْلُ مِلَّتَيْنِ شَتَّى "
"Two people from different sects will not inherit from each other."
Reference: Sunan Abu Dawood, Al-Fara'id, Chapter: Does a Muslim inherit from a disbeliever? Hadith 2911. Jami' at-Tirmidhi, Al-Fara'id, Chapter: People of two sects do not inherit, Hadith 2108. Sunan Ibn Majah, Al-Fara'id, Chapter: Inheritance of Muslims from polytheists, Hadith 2731. Musnad Ahmad 2/178,195
The last opinion appears to be the most correct because the narration presented in its support contains explicit text on the matter in dispute. Moreover, followers of different religions are mutually opposed and hostile to each other just as Muslims and disbelievers are. Therefore, just as the difference in religion between Muslims and disbelievers prevents inheritance rights, similarly, the difference in religion among other groups of disbelievers will also be an obstacle.
Those who hold the view that disbelief is a single community also believe that differences in sect prevent the payment of inheritance rights among disbelievers because due to sectarian differences, they do not help or cooperate with each other. We say that the same applies to differences in religion as well. Therefore, we consider it correct that a Christian will not inherit from a Jew, nor will a Magian inherit from a polytheist. Similarly, a polytheist will not inherit from a Jew, but the inheritance of Christians will be divided among Christians, and the inheritance of Jews among Jews. Likewise, the people of other disbelieving communities will be inheritors among their own respective communities.
Ruling on the Inheritance of a Killer
Sometimes a person has a reason to inherit, but due to a disqualifier, they are deprived of the right to inheritance. There are many disqualifiers of inheritance, and one of them is "killing," meaning if an heir kills their ancestor, the killer will not receive any part of the inheritance, because the Prophetic command is:
"لَيْسَ لِقَاتِلٍ مِيرَاثٌ "
"The killer shall not inherit."
Reference: Sunan Ibn Majah, Diyat, Chapter on the Killer Not Inheriting, Hadith: 2646
In another narration, it is stated:
"لا يرث القاتل شيئا "
"The killer will not be an heir to anything of the victim."
Reference: Sunan Abu Dawood, Diyat, Chapter on Diyat of Limbs, Hadith: 4564
The wisdom behind this is that the Shariah has closed a very dangerous door through this ruling, which is that the love of worldly wealth should not encourage an heir to kill their ancestor in order to obtain their wealth sooner. In such a case, the Shariah has declared the killer deprived of inheritance.
Besides, there is a well-known rule that whoever tries to unlawfully obtain something before its legitimate time, the punishment is that they are deprived of that very thing.
There is a consensus among scholars on depriving a killer from inheritance; however, they differ on which type and form of killing is disqualifying and which is not.
Schools of Jurisprudence Regarding Killing
❀ ① The Shafi'i school holds that regardless of the type of killing, the killer will not be an heir, because the statement of the Messenger of Allah, peace be upon him, is general:
"لا يرث القاتل شيئا "
"The killer will not inherit anything."
Reference: Sunan Abu Dawood, Blood Money, Chapter on Blood Money of Limbs, Hadith: 4564
Besides, murder also disqualifies one from inheritance so that killing is not used as a means to quickly acquire the deceased's property. Therefore, it is obligatory to deprive the murderer of inheritance in all cases to close the door to murder. On this basis, every type of killing will be considered a barrier to inheritance, even if the killing is lawful, for example: killing someone in retaliation (Qisas), or killing someone as a result of a judge's decision or a witness's testimony.
Similarly, killing that does not involve intent or premeditation will also be a barrier, for example: killing someone while asleep, a child or a mentally ill person killing someone, or killing that occurs as a result of an act permitted by Shariah, such as punishing someone to teach them manners and discipline, or treating a patient which results in their death, etc.
❀ ② The Hanafi school of thought holds that the killing which prevents inheritance is that which is unjust, meaning a killing that necessitates Qisas (retribution), Diyat (blood money), or Kaffara (expiation), for example: intentional murder, quasi-intentional murder, or accidental killing, or a killing similar to these cases, such as a child, a mentally ill person, or a sleeping person causing someone's death.
And a killing that is not of this nature will not prevent inheritance, for example: if someone is killed as Qisas, or if a Hudud punishment is carried out resulting in death, or if a person kills another in self-defense, or if the killer is just and the deceased is a rebel, or if someone dies during disciplinary action or treatment.
❀ ③ The scholars of the Hanafi school have almost the same stance, except that they do not consider killing by indirect cause (sabab) as preventing inheritance, for example: if someone digs a well or places a stone on the road, and then the deceased ancestor dies by falling into the well or tripping over the stone.
Similarly, according to the Hanafi scholars, killing caused by a child or a mentally ill person does not prevent inheritance.
❀ ④ According to the Maliki school, there are two cases of murder:
✔ 1. If the ancestor is killed intentionally and unjustly. In this case, the killer will not inherit either the property or the blood money of the ancestor.
✔ 2. If the killing is accidental, the killer will inherit the property of the ancestor, but will not inherit the blood money. The reason is that he did not hasten to seize the property of the deceased. As for not inheriting the blood money, it is because the payment of the blood money was incumbent upon him.
Preferred School
In our view, the Hanafi and Hanbali schools are correct, because in an act where the killer is at fault and is liable for compensation, it is correct to deprive him of the right of inheritance. However, in cases of killing where there is no liability for compensation, the killer will be considered excused and will not be held responsible; therefore, such killing will not prevent inheritance.
If, by following the opinion of the Shawaafi', every murderer is deprived of inheritance, the result will be that Hudood (punishments) will not be enforced and the rightful person will not receive their right. That is, when the person seeking Qisas knows that by taking Qisas he will be deprived of inheritance, he will not take Qisas.
In light of this detail, the generality of the statement of the Messenger of Allah, peace be upon him:
"لَيْسَ لِقَاتِلٍ مِيرَاثٌ "
will be restricted to the case when the killing is unjust, due to which Qisas or Diyat must be paid and surety is required.
This is what I have, and Allah knows best what is correct.
