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Inheritance

By:
Ann Elizabeth Mayer
Source:
The Oxford Encyclopedia of the Islamic World What is This? Provides comprehensive scholarly coverage of the full geographical and historical extent of Islam

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Inheritance

The Islamic law of inheritance, mīrāth, constitutes the single most distinctive and complicated part of sharīʿah law. It is particularly closely tied to the text of revelation: the Qurʿān contains more extensive and specific rules on inheritance than on any other subject. For this reason, it is the part of sharīʿah law least affected by contemporary reforms, most Muslim countries having essayed only minor adjustments in the twentieth century. It is also one of the topics on which Sunnī and Shī ʿī law most sharply diverge, as the two are based on incompatible premises.

The basic premise of Sunnī inheritance law is that the Qurʿā nic verses on inheritance came to reform the existing system of inheritance in western Arabia, under which the ʿasaba (male relatives connected to the deceased through male ties) inherited. This necessitates reconciling the scheme of fixed portions allotted to the Qurʿānic sharers, the dhaw al-farāʿid, with the claims of the ʿasaba, who are treated as residuary heirs. This is an extremely difficult task that has led to the development of rules of great complexity and many divergences between jurists.

In contrast, the Shīʿīs believe that the Qurʿānic scheme of inheritance was meant to supplant altogether the ʿasaba-based scheme. In application, the Shīʿī rules keep more of the inheritance within the nuclear family and often place the daughter(s) of the deceased in a more favorable position than under Sunnī law; in Sunnī law male agnates, male relatives on the father 's side, are more favored. The Islamic law of inheritance introduced important changes in the pre-Islamic system. For the first time, women were allowed to inherit—although in almost all instances they were entitled to only half the share of a male inheriting in the same capacity. It also permitted inheritance to pass through the female line, although the situations in which uterine relations would actually be entitled to share in the inheritance were exceptional. In addition, the surviving spouse was allowed to inherit, although shares were otherwise exclusively distributed to persons sharing a blood tie to the deceased.

Islamic law contemplates inheritance following a mandatory scheme of intestate succession, meaning that the power of the deceased to bequeath property by will (waṣāyā) is restricted; a testator may bequeath no more than one-third of the estate by will. In Sunnī law the testator may not use bequests to persons already benefiting under the scheme of intestacy; in Shīʿī law, however, this is allowed. To avoid dissipation of the estate close to the time of death, a person during maraḍ al-mawt (death sickness) may not dispose of property. Maraḍ al-mawt may last up to one year prior to death and is counted from the time when the condition that actually leads to the person 's demise begins to take inexorable effect.

In the typical case, where there will be a number of heirs of the estate, Islamic inheritance law will lead to the fragmentation of property into small fractional shares that may be unusable. To avoid such fragmentation Muslims have resorted to various devices; one of these was constituting landed property as waq  f (religious endowment) and thereby excluding it from being passed on under the scheme of intestate succession.

See also PROPERTY and WAQF.

Bibliography

  • Bakhtiar, Laleh. Encyclopedia of Islamic Law: A Compendium of the Major Schools. Kazi Publications, 1996. Find it in your Library
  • Bowen, John R.Islam, Law, and Equality in Indonesia: An Anthropology of Public Reasoning. New York: Cambridge University Press, 2003. Find it in your Library
  • Coulson, Noel J.Succession in the Muslim Family. Cambridge, 1971. Outstanding general study of Islamic inheritance law. Find it in your Library
  • Esposito, John L. with Natana J. DeLong-Bas. Women in Muslim Family Law, rev. ed.Syracuse: Syracuse University Press, 2002. Find it in your Library
  • Glander, Annelies. Inheritance in Islam: Women's Inheritance in Sana ’a (Republic of Yemen): Law, Religion, and Reality. Peter Lang Publishing, 1998. Find it in your Library
  • Layish, Aharon. “Mīrāth.” In Encyclopaedia of Islam, new ed., vol. 7, pp. 107–113. Leiden, 1960–. Two scholarly essays on inheritance law. Find it in your Library
  • Zubaida, Sami. Law and Power in the Islamic World. London: I. B. Tauris, 2005. Find it in your Library
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