Chapter One
Conditions for the Heir/Legatee
and the Deceased/Legator
The conditions for both the heir/legatee (wārith) and the deceased/legator (mowarrith), are:
First: Death of the legator and life of the heir/legatee
1510. The heir does not deserve anything from the estate of the deceased/legator until the ‘living’ status of the heir, when the legator dies, is confirmed after the ‘death’ status of the legator when the heir is confirmed to be alive, so if they die at the same time, they do not inherit from each other; it is sufficient regarding the death of the legator – in addition to natural death – if it is regarded as death according to the Shari’ah, something which has two possibilities:
First: Deserting the faith (irtidād) by one who was born to Muslim parents (mortadd fitri), in this case it is allowed for the heirs of the man who is a fitri deserter to distribute his estate during his life upon the confirmation of his desertion of Islam even if before carrying out the hadd on him, whilst the estate of the millī deserter (who was born as non-Muslim then embraced Islam after bolūgh then deserted it) is not distributed until after carrying out the hadd on him.
Second: Going missing, when regarding the missing person is not known whether he is dead or alive; in this case after four years of his family’s waiting and searching for him, as explained in the divorce section, it is allowed to distribute his estate.
1511. Death – that requires the transfer of inheritance – is confirmed through decisive knowledge formed by seeing or otherwise, also through things that are similar to knowledge, which are: satisfaction (itmi’nān) coming from any reason, such as common knowledge (shiyā’) and the like, or a witness with proof, even through the witness of only one just, trustworthy person.
1512. Of the assets of the fitri deserter, only the assets that he owned before his desertion are to be transferred to his heirs; however, the assets that come into his ownership after that and until the hadd is carried out on him, or when the hadd is not carried out on him, are owned by him.
1513. Inheriting from the fitri deserter is limited to those in whom the conditions required for inheriting from the deserter are met, so other individuals who meet these conditions after distributing the inheritance do not get anything, even if meeting these conditions before the actual distribution of his assets to the heirs.
1514. The missing person is not regarded as dead – as far as the Shari’ah is concerned – until the elapse of four years of searching for him, then if there is no news about him, his heirs may distribute his estate. It seems more probable that it is allowed to distribute his estate after the elapse of ten years after he goes missing, without the need to search for him. His heirs are those in whom the conditions are fulfilled when the period of waiting finishes, not after it. And just as his estate will be inherited by others after the elapse of the two mentioned periods, he will inherit from others when they die in any case, i.e.: if the death of a legator benefiting him takes place before the commencement of searching for him, or during the two mentioned periods or after them, in which case what he inherits is added to his assets, making him the owner of it like the rest of his assets; then if he comes back from his absence, he can dispose of it, but if his death is discovered or if he remained missing, his heirs inherit from him. If his estate is then distributed to his heirs after the elapse of one of the two periods, he will not – thereafter – inherit from others.
1515. To ascertain the living status of the heir, two things must be established: first, knowledge of the formation of his notfah ('drop of fluid', or early form of life in the womb) before the death of his legator, although he is still an embryo in which spirit has not entered yet; second, his birth alive from his mother’s womb even a very short while, even one moment, in this case, if he separates from his mother alive, he deserves his share and he owns it with all consequences, so that if death befalls him afterwards, his heirs will in turn inherit from him as from any other deceased people.
1516. The embryo does not inherit as long as he is still embryo, even if he is known to be alive in his mother’s womb, until he separates alive; however, he must be taken into consideration when dividing the estate in the cases where his share is affected by the other heirs; the details of this as follows:
a- If the subject of pregnancy (i.e. the embryo) is alone in his group and level (of inheritance) so that others are in a lower group or level and do not inherit with his existence, in this case, it is not allowed to distribute the estate until after giving birth, so as to see if inheritance is due to him, through being born alive, or to others, if he is born dead.
b- If there are others in the same group or level, and if there are among them people whose share is going to be reduced due to the pregnancy and others whose share will not, in this case those who will not see their share reduced (due to the pregnancy) are to be given priority regardless of the status, such as the husband or wife, and are to be given their share complete, then the share of those whose shares are going to be affected by the presence of the pregnancy or otherwise must be reduced by the amount that the subject of the pregnancy will inherit; this is to be put aside and the rest of the heirs are to receive their shares, which are estimated on the basis of the assumption that the birth will result in a living child and so it will inherit with them. After that, if he is born alive and the amount which was put aside was equal to his share, then all the estate has been distributed properly, but if the amount put aside was less than his share, he must take from the shares of the rest of heirs to the ratio of each of their shares in the deficit to complete the share of the newly born baby; but if he is born dead, or the amount which was put aside was more than the correct share, each one of the others are to receive their share of the excess.
And where it is possible to ascertain if the pregnancy is of one or more babies and male or female, as is the case in our time, the amount to be put aside should be the correct share; but when it is not possible to know, it is an obligatory precaution to put aside the share of a male not a female and according to the number of babies that is more likely, be it one or more.
1517. The life of an embryo after his separation from his mother – even if he died immediately – is acknowledged by its crying and clear movement that cannot take place except in a living person; so a movement that is the result of muscle tension, that can take place in someone who has just died, is not regarded as a sign of living.
Second: The death of the deceased that is not at the hands of his heir (killing)
1518. For the heir to get his share of the deceased’s estate, he must not have intentionally killed him, so a killer does not inherit from the person he killed if the killing was intentional and unjustified, but he will inherit from him if this was a punishment, a hadd or in self defence or in the defence of his honour or possessions; he also inherits him if the killing was purely by mistake, such as if he was shooting a bird but missed and shot his would-be legator. However, he does not inherit from the diyah (killing compensation) which is due from the ‘āqilah, as the more probable ruling. The ‘āqilah are the relatives from the father's side who join in paying the diyah to the killed person’s family on behalf of the killer.
If the killing was an error, that is similar to an intentional killing, which is: if he intended to inflict the act on the killed person, but did not intend to kill him and the act was something that would not normally result in killing, such as if he hit him with something that does not normally kill, intending to hit him not kill him, but this ended up in killing him, in this case he is not excluded from the inheritance, but – also – he does not inherit from the diyah.
Regarding the killing excluding the potential heir from getting his inheritance, there is no distinctio between the killer being one or more than one; and also no distinction – in the case of more than one killer – between some of them being heirs while the others not.
1519. If the legatee (heir) ordered a sane person to kill his legator, threatening him to inflict harm on him or on someone who is related to him if he does not do it, and the killer executed his wish and order and killed the person, in this case the person who ordered the killing is not excluded from his inheritance because he is not the one who carried out the killing, although he has sinned and will be given life imprisonment until he dies.
1520. The diyah is regarded as the killed person's asset, so it can be used to pay off his debts, then used first to execute his will before further inheritance is distributed, as long as the diyah is equal to or less than a third of the total; then the rest is to be distributed amongst his heirs like his other assets.
The diyah is inherited by every heir, whether their inheritance was through ancestral kinship or marital kinship, even to two spouses involved in intentional killing. That said, half-brothers and half-sisters from the mother do not inherit, nor do the rest of those who relate to her on her own, such as uncles (on the mother’s side) and grandfathers (on the mother’s side).
1521. The diyah that becomes obligatory for cutting off some of the organs of the deceased is not paid to the heirs, but to be spent – in given on charity on his behalf if he had no debt; otherwise, it is allowed to use it, as the rest of his assets, to pay off his debts.
Third: The Islam of the heir if the deceased is Muslim
1522. There is no dispute that Muslims inherit from each other even if they differ in the schools of thought that they follow or if they differ in some beliefs; so the fact that the father follows one school of thought and the son follows another does not stop them inheriting from each other. That said, if the person following another school of thought denies an essential belief (darūrah), the denial of which implies atheism, in this case he becomes a mortadd who does not inherit from a Muslim, as will be explained.
Also, there is no dispute that non-Muslims inherit from each other regardless of their religions and beliefs, so there is no problem – in our Shari’ah – if the father is Jewish or Buddhist and the son is Christian or Zoroastrian preventing each of them inheriting from the other.
This is if the inheriting individuals are either all Muslims or all non-Muslims. However, if they are a mixture of Muslims and non-Muslims, in this case the ruling is different as will be explained.
1523. If a Muslim dies and there are among his heirs a Muslim and a non-Muslim, the non-Muslim does not inherit from him however near he is in his ancestral relationship, and the non-Muslim does not inherit from him through a marital relationship even if the deceased is his wife, such as if a Muslim man married a woman from the People of the Book, while the Muslim inherits from him however distant he is in his ancestral relationship; so if a Muslim dies leaving a non-Muslim son and a Muslim relative who owes compensation, the latter inherits from him, not his non-Muslim son. Also, if there is no one to inherit from him amongst his Muslim heirs except the imam or someone who stands in his place, the latter inherits from him without any share going to the non-Muslims, even if the latter are related to the deceased through biological or marital relations. But if one or more of them embrace Islam after the death of the legator (but) without a time separation that is too long, the person(s) who embrace Islam inherits from him, not his other non-Muslim relatives or the imam.
Regarding non-Muslims there is no distinction between the kāfir harbi (a non-Muslim who is in a state of war with the Muslims) and the thimmi (a non-Muslim who is a citizen of the Muslim state), or between the mortadd fitri (a born-Muslim who deserted Islam after bolūgh) and the mortadd milli (a born-non-Muslim who embraced Islam after bolūgh then deserted it), nor regarding Muslims is there a distinction between the imāmi ithnā-‘ashari (followers of Ahlul-Bayt (as)) and others.
1524. If a non-Muslim dies and among his heirs are a Muslim and a non-Muslim, his ruling is the same as the previous entry, i.e. the Muslim inherits from him however distant he is in his ancestral relationship, not the non-Muslim however closely related; so if a non-Muslim dies leaving one non-Muslim son and a Muslim relative who owes compensation, the latter inherits from him not his non-Muslim son. However, there is one difference here, which is that if all his heirs – through both biological and marital relations – are non-Muslims, in this case they inherit from him, not the imam, if the deceased was originally a non-Muslim, also if he was mortadd milli, even mortadd fitri as well.
But excluded from this complete exclusion from the non-Muslim estate is his young child who is regarded as a non-Muslim (since he is his child); here it is an obligatory precaution on the Muslim heir to provide his maintenance using what he has inherited – even if there is more than one child – until he reaches bolūgh, then if he embraces Islam, what is left of the estate - if anything is left after the Muslim's spending on the child’s maintenance and on himself in any way he has wished - is to be handed over to him. In fact, if Islam is declared by that young child before his bolūgh, it is more appropriate for the Muslim heir, as a precaution, to hand over what is left of the estate to the Islamic authority to take over the maintenance of the child; then if he remains a Muslim after bolūgh, the Islamic authority hands over what is left, if anything, of the estate; otherwise the Islamic authority returns what is left of the estate to the Muslim heir.
There are some further details relating to the non-Muslim who embraces Islam after the death of the legator; for these, please refer to the original guide ‘Fiqh ash- Shari’ah’.
Fourth: Being born to a legitimate marriage
1525. When inheriting due to a kinship, the ancestral link must have come from legitimate marriage not adultery; the legitimate marriage includes marriage based on a valid contract and sexual intercourse taking place between a man and woman in questionable/erroneous legitimacy, regardless to whether the notfah (first state of the embryo) forms as a result of allowable or forbidden intercourse; this occurs when a man has sexual intercourse, whether with his wife or the woman with whom he had intercourse of erroneous legitimacy, during her menses or when one of them was in a state of ihrām (for pilgrimage or ‘omrah in Mecca), as this does not affect the legitimate status of the resulting child. On the basis of this, if the child was the result of adultery, the child does not inherit from his adulterous parents nor from their relatives, however the ancestry chain continues upwards, and they do not inherit from their illegitimate child, nor does anyone who is born to him, including his children or grandchildren and however the ancestry chain continues downwards.
1526. Just as the adultery of the parents prevents inheritance between them and their illegitimate child, the adultery of one of the parents with someone acting in erroneous legitimacy prevents inheritance between the adulterer and the child born from that sexual intercourse, just as it prevents inheritance between the child and the relatives of the adulterer, but it does not prevent inheritance between the child and the parent who acted in erroneous legitimacy, nor the relatives of that latter.
1527. The fact that the child is a son of adultery does not affect inheritance between him and whoever relates to him through non-adultery, through either biological or marital links, such as children, or a husband or a wife, in addition to people who owe compensation, then the imam when no heir exists.