Inheritance When Religions Differ
Muslim scholars have different views on the subject of inheritance when the deceased person and his heirs are from different religions. The presence of a bequest by will plays an important role in this case.
Inheritance When Religions Differ
- A Muslim’s inheritance from a non-Muslim;
- A non-Muslim’s inheritance from a Muslim;
- A Muslim’s inheritance from the follower of a divine religion.
Who inherits in cases where a Muslim dies in a non-Muslim country where he has Muslim and non-Muslim relatives, or an unbeliever dies and he has Muslim relatives. What should a person do if the law gives him a share of inheritance despite the difference in faith, or if the law deprives him of inheritance while Islamic law entitles him to a share?
There are several possibilities here, and each has a different ruling:
The first possibility is that of a deceased Muslim with non-Muslim relatives and the law of the country entitles them to shares of inheritance alongside his Muslim heirs. The only way open to a Muslim in such a situation is to abide by this requirement, which is unfair. This is most clearly apparent when the deceased’s wife is non-Muslim and they have children. The law of the country may give her half the deceased’s estate.
Assembly of Muslim Jurists of America writes: ‘What American law states is at variance with what God has revealed and it is unlawful for him or her to act on it. He should, indeed he must, write a proper will to give his inheritance in accordance with the Islamic system of inheritance. According to the rules of inheritance, she gets one-eighth, not one-third, because her husband has children who are entitled to their appropriate shares.
“You shall inherit one half of what your wives leave behind, provided that they have left no child; but if they have left a child, then you shall have one-quarter of what they leave behind, after [deducting] any bequest they may have made or any outstanding debt. And they (i.e. your widows) shall inherit one-quarter of what you leave behind, provided that you have left no child; but if you have left a child, then they shall have one-eighth of what you leave behind, after [deducting] any bequest you may have made or any outstanding debt. If a man or a woman has no heir in the direct line, but has a brother or a sister, then each of them shall inherit one-sixth; but if there be more, then they shall share in one-third, after [deducting] any bequest which may have been made or any outstanding debt, neither of which having been intended to harm [the heirs]. This is a commandment from God; and God is all-knowing, gracious.”
God’s authority is higher and His rule is superior.’
The second possibility is that of the deceased being a non-Muslim who has Muslim relatives, and the law gives them shares of inheritance. Is it permissible for them to take these shares or not? Scholars have two different views on whether a Muslim may inherit from a non-Muslim. The majority of scholars say that a Muslim may not inherit from a non-Muslim. They cite in evidence an authentic hadith reported by Usamah ibn Zayd:
‘The Prophet said:
“A Muslim does not inherit from an unbeliever, and an unbeliever does not inherit from a Muslim.”’
(Related by al-Bukhari, hadi>span > No. 25; Muslim, hadith No. 6,383)
The Kuwait Fiqh Encyclopaedia states: ‘The majority of Muslim scholars endorse the ruling that a Muslim may not inherit from an unbeliever.’ The Permanent Committee for Research and Fatwa, under the chairmanship of Shaikh Abd al-Azeez ibn Baz, issued many fatwas confirming this view. The Egyptian Dar al-Ifta also gave similar fatwas. The other view permits a Muslim to inherit from an unbeliever. This is the view of Mu'adh ibn Jabal and Mu'awiyah ibn Abi Sufyan, both of whom were companions of the Prophet. It is also the view of Sa'id ibn al-Musayyib, Masruq and Ibn Taymiyyah. In evidence, they cite the hadith quoting
the Prophet as saying:
‘Islam supersedes and is not superseded.’
Scholars who subscribe to this view maintain that the superiority of Islam means, inter alia, that a Muslim may inherit from a non-Muslim. Those who take the first view interpret the hadith as speaking of Islam itself being superior in the sense that it has the more profound argument, and it is triumphant. Ultimately, it is the Muslims that will be given victory.
Decision 1/5 of the European Council for Fatwa and Research adopts the second view, stating: ‘The Council is of the view that Muslims should not be denied their inheritance from their non-Muslim relatives, or what such relatives may give them by will.’ This is not in conflict with the authentic hadith that says:
‘A Muslim does not inherit from an unbeliever, and an unbeliever does not inherit from a Muslim.’
This hadith should be interpreted to refer to an unbeliever who is hostile to Islam. It should be noted that in the early period of Islam, Muslims were not denied the right to inherit from their non-Muslim relatives. Among the Prophet’s companions, Mu'adh ibn Jabal and Mu'awiyah ibn Abi Sufyan were of this view. Among their successors who also shared this view were Sa'id ibn al-Musayyib, Muhammad ibn al-Hanafiyyah, Abu Ja'far al-Baqir and Masruq ibn al-Ajda'. It is endorsed by Ibn Taymiyyah and Ibn al-Qayyim.
In Al-Khulasah fi Fiqh al-Aqaliyyat we read: ‘It is wrong to criticise the European Council for Fatwa and Research for this fatwa permitting a Muslim to inherit from a non-Muslim. The fatwa upholds the view of Mu'adh ibn Jabal, Mu'awiyah ibn Abi Sufyan, Muhammad ibn al-Hasan, Sa'id ibn al-Musayyib, Masruq, Yahya ibn Ya'mur, Ishaq ibn Rahaweih, Ibn Taymiyyah and Ibn al-Qayyim, even though it is at variance with the view of the founders of all four schools of Islamic Fiqh.’
The fatwa of the Assembly of Muslim Jurists of America permits Muslims to inherit from non-Muslims. It says:
“A Muslim does not inherit from an unbeliever, and an unbeliever does not inherit from a Muslim.”
But we know also that among the Prophet’s companions were people like Mu'adh ibn Jabal and Mu'awiyah who allowed a Muslim to inherit from his non-Muslim parents. Thus a number of scholars take the view that the non-Muslim referred to in the above-quoted hadith is a combatant who actually fought against Muslims. This was the case with most unbelievers when the Prophet made this statement. According to this view, if the parents of this Muslim person are non-combatant, their children may inherit from them.’
A well known Islamic principle confirms this view. It says: ‘Islam elevates, but does not bring [a Muslim] down.’ This means that those children should benefit by whatever is left to them by their non-Muslim parents and never be denied it.
The Academy of Islamic Research at al-Azhar, Cairo, issued a fatwa based on the unanimously held view of scholars concerning the first case of an unbeliever’s inheritance from a Muslim. The fatwa makes clear that a woman who follows a divine religion other than Islam cannot inherit from her Muslim husband. The fatwa considers this a well-settled question. Dr Nasr Wasil Fareed, the former Mufti of Egypt, said that this is an essentially known aspect of Islam, allowing no argument or review. The ruling is agreed by all scholars, without dissent.
As for the other case, the fatwa states: ‘Some scholars disagree with regard to a Muslim inheriting from an unbeliever. They allow such inheritance, making it lawful for a Muslim to inherit from his non-Muslim relative, because “Islam supersedes and is never superseded”, as the Prophet states. They also cite the case when 'Ali killed the apostate al-Miswar al-'Ujali and ruled that his estate should go to his Muslim heirs.’
A study entitled ‘Difference in Religion and its Effect on a Muslim’s Inheritance from His non-Muslim Relative’ says the difference in faith has no effect on the right of a Muslim to inherit from his non-Muslim relative. A Muslim may inherit from his relative who is an unbeliever. This is the view endorsed by Ibn Taymiyyah, Ibn al-Qayyim and the European Council for Fatwa and Research.
The third possibility : is that of a bequest by will made to a Muslim by a non-Muslim. This is perfectly acceptable from the Islamic point of view. If the deceased’s estate is divided on the basis of a will made by the deceased, who is non-Muslim, and it includes a Muslim relative or friend, the Muslim beneficiary may take whatever is assigned to him by such a will.
The fourth possibility : is a bequest by will made by a Muslim to a non-Muslim. Some scholars are of the view that it is permissible for a Muslim to give by will to his wife, mother, or another relative who is not a Muslim what they would have inherited from him had they been Muslims. They cite in evidence
the Qur’anic verse that says:
‘It is prescribed for you, when death approaches any of you and he is leaving behind some property, to make bequests in favour of his parents and other near of kin in fairness. This is a duty incumbent on the God-fearing.’
Some scholars interpret this verse as making bequests in favour of non-Muslim parents. Other relatives may also be included on the basis of analogy.
The rule that says that the followers of two different religions may not inherit from each other means that a Muslim may not inherit from a non-Muslim and vice versa. However, it is permissible to take what the testator gives during his lifetime, including it in his will. This applies to what is given freely by will, not by a system of inheritance.
The Assembly of Muslim Jurists of America does not say anything about this question. Its second session devoted to family cases in American society did not discuss it, nor did the European Council for Fatwa and Research discuss this question.
- Fatawa by The Permanent Committee for Research and Fatwa.
- The website of the European Council for Fatwa and Research: www.e-cfr.org .
- University of Sharjah, Journal of Islamic and Legal Studies, vol. 5, No. 1.
- Ali ibn Nayef al-Shahhood, Al-Khulasah fi Fiqh al-Aqaliyyat.
- The website of the Assembly of Muslim Jurists of America (AMJA): www.amjaonline.org
- Website of Salah al-Sawy: www.assawy.com.
- The Kuwait Fiqh Encyclopaedia, vol. 3, p. 25.
- For example, fatwa No. 1,644, issued on 10/8/1397 AH, 1977.
- The late Shaikh Muhammad Hasanain Makhloof issued a fatwa to this effect in 1372 AH, 12 May1953. The late Shaikh Ahmad Hireidi issued a similar fatwa on 27 February 1964.
- Related by al-Darqutni, hadith No. 395; al-Bayhaqi, vol. 6, p. 205. Al-Albani grades this hadith as Good.
- The Kuwait Fiqh Encyclopaedia, vol. 3, p. 25.
- The wbsite of the Egyptian Dar al-Ifta: www.dar-alifta.org.