Shiite Law of Inheritance

  1. The definition of Law of Inheritance

The Arabic term of law of inheritance is irth originated from verb waratha. The word waratha is verbal noun (maṣdar) of verb form waritha – yarithu – wirthah –  wirāthah – wurrāth in which the letter waw was changed into hamzah meaning capital (aṣl) and remainder of something. The word irth, mīrāth and turāth have the same meaning and are intended as something inherited (mawrūth) that have close relation to the word tirkah.[1]

Al-Shāhīd al-Awwal[2] said that mīrāth meant something that someone has as a result of the death of someone else because of the prevailing relation between them whether from blood (nasab) or cause (sabab) relation. Whereas al-Shāhid al-Thānī said that the word mīrāth was derived from the word mawrūth that meant properties left by the inheritor (tirkah) but if the word mīrāth derived from irth meant the right of someone (heir) to the properties as result of the death of someone else (inheritor) because of the prevailing of relation between them whether blood or cause relation as well.

Beside the word irth and mīrāth, there is the word closes in meaning with the two words namely farā’iḍ that is the plural form from the word farīḍah means part, share, portion and allotment decided by Allah namely the six shares explained elaborately in the Quran[3] i.e. half, two-third, one-fourth, one-eighth, one-sixth, and one-third. However, the word irth has broader meaning than that of farīḍah because the first encompasses the material rights and who are the heirs more appropriate to have inheritance right, whereas the later especially encompasses the share of inheritance decided by Allah in the Quran.

  1. Classification of Heirs

Discussion of classification of heirs in Shiite inheritance system in this chapter pertains to the causes of inheritance (asbāb al-mīrāth). Shiite inheritance classifies the causes of inheritance into two; nasab (blood relationship) dan sabab (special case). Nasab is the relation between heirs and inheritor through childbirth (wilādah) while sabab is the relation between heirs and inheritor through with exception of childbirth. It comprises of allegiance (walā’) and matrimony (zawjiyyah).[4] Nasab consists of three classes and every class comprises two groups, as follows:

  1. Class I consist of two groups, namely: a) parents and b) children and lineal descendants how low so ever (h.l.s.)
  2. Class II consists of two groups, namely: a) grandparents how high so ever (h.h.s.) and b) brothers and sisters and their descendants h.l.s.
  3. Class III consists of one group, namely: paternal uncles and aunts of the deceased and of his parents and grandparents h.h.s. and their descendants and maternal uncles and aunts of the deceased and of his parents and grandparents h.h.s. and their descendants.[5]

There are three rules regulate the heirs in Shiite inheritance system, namely:

  1. The heir of the first class prevents that of the next class to inherit. If there is heir of first class, the heirs of second and third class do not inherit altogether. class I excludes Class II and III, similarly Class II excludes Class III, however the group of heirs of every class do not exclude each other. For instance full brother is excluded by daughter because he belongs to class II while daughter belongs to class II.[6]
  2. The closer heirs in each class to the proprietor exclude that of more remote ones but the closer heirs in the certain class do not exclude that of more remote ones of other classes, for instance if the proprietor leaves son and son’s son as heirs, the son exclude the son’s son because they are of the same group. But, if the proprietor leaves father and son’s son, the father do not exclude the son’s son because they are not of the same group even though they are in the same class.
  3. The heir descended from both father and mother excludes that of descended from the father only when they share in the same remoteness to the proprietor.[7]

It needs to bear in mind that the heirs in Shiite inheritance system does not differentiate the heirs whether related to the deceased or proprietor from male lines or female ones in terms of their rights to inherit. Grandsons as well as granddaughters descending from son and daughter as well have the same right of inheritance.

Whereas sabab of allegiance constitutes three kinds, namely walā’ al-‘itq (right of emancipation), walā’ taḍammun al-jarīrah (right of obligation for delicts committed by the inheritor), and walā’ al-imāmah (right of religious leader). Besides, al-Ṭūsī added the right of who make unbelievers became muslim and the right of obligation for paying zakah to slaves he purchased and then emancipated.[8] The sabab of allegiance will inherit in default of the heirs of nasab while the sabab of matrimony consists of husband and wife without their children.

  1. Shares of Heirs

Heirs of nasab and sabab of matrimony can be classified into three groups, as follows:

  1. The heir who does not inherit except as Qur’anic heirs (farḍ) namely mother, husband and wife in default of heirs except imām.[9] And
  2. The heirs who inherit as Quranic heirs at once time and as qarābah[10] at the other. They are father, daughter(s), and sister(s). The father inherit as Quranic heir when children prevail and by means of qarābah in default of them and daughter(s) and sister(s) inherit as Quranic heirs when their brothers prevail i.e. when daughter(s) inherit with son and full sister(s) inherit with full brother and consanguine sister(s) inherit with consanguine brother, they are inherit by means of qarābah and in default of their brothers, they inherit as Quranic heirs.
  3. The heir who only inherits by means of qarābah because the Qur’an does not determine the share for them. They are brother, uncle of male as well as female lines, and grandfather.[11]

The shares of inheritance in Shiite inheritance system consists of two shares, the first is farḍ share, a detailed fragmentation (kasr mu‘ayyan or furūḍ al-muqaddarah ) owned by ṣāḥib al-farḍ (the sharer) or al-wārith bi al-farḍ and the second is the share that is not detailed by al-Qur’an and the owner of the share called al-wārith bi al-qarābah. The detailed shares consist of six shares, namely half (1/2), two-third (2/3), one-third (1/3), one-sixth (1/6), one-fourth (1/4), and one-eighth (1/8). The elaboration of each share is as follows.

  1. The one-second or half (1/2) share is for four heirs, namely:
  • One daughter in failing of son(s).
  • Husband in failing of the deceased’s children.
  • One sister of both father and mother (shaqīqah) in failing of her brother(s).
  • One sister descended from the same father only (li abb) and in failing of her brother(s).
  1. The two-third (2/3) share is for three heirs, namely:
  • Two or more daughters in failing of son(s).
  • Two or more sister descended from same father and mother (shaqīqah) and in failing of their brother(s).
  • Two or more sister descended from father only (li abb) and in failing of their brother(s).
  1. One-third (1/3) share is for two heirs, namely:
  • Mother when the deceased does not have children.
  • Two or more sisters or brothers or mixture of sister and brother descended from mother only.
  1. One-sixth (1/6) share is for three heirs, namely:
  • Mother when the deceased has children.
  • Father when the deceased has children.
  • Mother when the deceased has no children but the deceased’s father still alive.[12]
  1. One-fourth (1/4)
  2. One-eighth (1/8)

The detail of shares of Qur’anic and qarabah heirs are as follows:

No HEIRS SHARE CLASS EXPLANATION
1. Husband 1/2 All In default of children
1/4 In prevailing of children
2. Wife 1/4 All In default of children
1/8 In prevailing of children
3. Father Q I In default of children
1/6 In prevailing of children
4. Mother 1/3 I In default of children
1/6 In prevailing of children
5. Son Q I Take residuary left by Quranic heirs
6. Daughter 1/2 I One daughter
2/3 Two or more daughters
7. Son and Daughter Q I They take 2:1 respectively
8. Grandfather and Grandmother Maternal side: 1/3

 

II Grandfather and grandmother of maternal side take equally
9. Grandfather and Grandmother Paternal side: 2/3 II Grandfather and grandmother of paternal side take 2:1 respectively.
10. Full brother Q II Take residuary left by Quranic heirs
11. Full sister 1/2 II One full sister
2/3 Two or more sisters
12. Full brother and sister Q II They take 2:1 respectively
13. Consanguine Brother Q II Take residuary left by Quranic heirs
14. Consanguine Sister 1/2 II One consanguine sister
2/3 Two or more consanguine sisters
15. Consanguine Brother and Sister Q II They take 2:1 respectively
16. Uterine Brother and sister 1/6 II One uterine brother or sister
1/3 Two or more uterine brother or sister. Uterine brother and sister share equally.
17. Son and daughter of Full or ConsanguineBrother and Sister Those of Brother II The son and daughter of them take 2:1 respectively
Those of sister II The Son and daughter of the share equally
18. Son and daughter of uterine brother and sister II The son and daughter share equally.
19. Grandfather, Grandmother, and collaterals Paternal side II Grandfather and grandmother are counted as full or consanguine brother
Maternal side II Grandfather and grandmother are counted as uterine brother or sister
20. Uncle and Aunt Paternal side: 2/3 or

all: in default of those of maternal side

IIIA Uncle and Aunt take as if they are brother and sister, as follows: a) 1/3 or 1/6 to be assigned to uterine uncles and aunts equally, and b) the reminder 2/3 or 5/6 to be assigned among full (consanguine) uncles and aunts 2:1 respectively.
Maternal Side: 1/3 or

all: in default of those of paternal side

IIIA Uncle and Aunt take as if they are brother and sister, as follows: a) 1/3 or 1/6 to be assigned to uterine uncles and aunts equally, and b) the reminder 2/3 or 5/6 to be assigned among full (consanguine) uncles and aunts equally.
21. Descendant of Uncle and Aunt Paternal Side IIIB
Maternal Side IIIB
22. Uncle and Aunts of the Deceased Paternal Side IIIC
Maternal Side IIIC
23. Descendant of Uncle and Aunts of the Deceased Paternal Side IIID
Maternal Side IIID

 

  1. The Bar of Inheritance (Mawāni‘ al-Irth)

There are many kinds of impediments of inheritance even counted to twenty kinds. But the discussion is focused into three popular impediments of inheritance namely: unbeliever (kufr), homicide (qatl) and slavery (riqq). Unbeliever is the man who leave his believe and faith named Islām. Based on this, dhimmī, ḥarbī, and murtad[13] and other faiths other than Islam do not inherit from their Muslim inheritor but conversely, Muslim can inherit from their non-Muslim inheritor.

[1] Mu’assasah Dā’irah Ma‘ārif al-Fiqh al-Isl amī, Mawsū‘ah al-Fiqh al-Islāmī Ṭabq li Madhhab Ahl al-Bayt,  Vol. 9, (Qum: Mu’assasah Dā’irah Ma‘ārif al-Fiqh al-Isl amī , 2005), p. 9.

[2] He was Abū ‘Abd Allāh Shams al-Dīn Muḥammad ibn Makkī al-‘Āmilī, a recognized scholar of Islamic law (faqīh) in Shiite school. He was born at Jazīn, a mountain ‘Āmil district southern of Lebanon in 760 Hijri Era. See al-Shahīd al-Awwal, Muḥammad ibn Makkī, al-Durrah al-Bāhirah min al-Aṣdāf al-Ṭāhirah al-Mansub ilā al-Shahīd al-Awwal. ‘Abd al-Hādī al-Mas‘ūdī (trans.) (Qum: Intishārāt Zā’ir, 1379 h.e.), pp. 9-10.

[3] Mu’assasah Dā’irah Ma‘ārif al-Fiqh al-Isl amī, Mawsū‘ah al-Fiqh al-Islāmī Ṭabq li Madhhab Ahl al-Bayt,  Vol. 9, (Qum: Mu’assasah Dā’irah Ma‘ārif al-Fiqh al-Isl amī , 2005), p. 10.

[4] Muḥammad Ḥasan al-Najafī, Jawāhir al-Kalām fī Sharḥ Sharāi‘ al-Islām, Vol. 39. (Bayrūt: Dār Iḥyā’ al-Turāth al-‘Arabī, 1981), p. 7.

[5] Husband and wife share across the classes and there are no heirs can exclude them to inherit, see Ayat Allāh al-‘Uẓmā al-Sayyid Mūsā al-Ḥusaynī al-Zanjānī, al-Masā’il al-Shar‘iyyah, (Qum: Mu’assasah Nashr al-Faqāhah, 1428H), p. 637 and see Asaf A.A. Fyzee, Outlines of Muhammadan Law (New Delhi: Oxford University Press, 1974), 442 and also see Abū al-Qāsim Najm al-Dīn Ja‘far ibn al-Ḥasan, Sharā’i‘ al-Islām fī Masā’il al-Ḥalāl wa al-Ḥarām, Vol. 3 and 4, (Bayrūt: Dār al-Qāri’, 2004), 261.

[6] Muḥammad Ḥasan al-Najafī, Jawāhir al-Kalām fī Sharḥ Sharāi‘ al-Islām, Vol. 39. (Bayrūt: Dār Iḥyā’ al-Turāth al-‘Arabī, 1981), p. 7 And see Asaf A.A. Fyzee, Outlines of Muhammadan Law (New Delhi: Oxford University Press, 1974), 442.

[7] Ayat Allāh al-‘Uẓmā al-Sayyid Mūsā al-Ḥusaynī al-Zanjānī, al-Masā’il al-Shar‘iyyah, (Qum: Mu’assasah Nashr al-Faqāhah, 1428H), pp. 637-8.

[8] Muḥammad Ḥasan al-Najafī, Jawāhir al-Kalām fī Sharḥ Sharāi‘ al-Islām, Vol. 39. (Bayrūt: Dār Iḥyā’ al-Turāth al-‘Arabī, 1981), p. 8.

[9] There are different opinion about their right to the return of residue (radd), al-Najafī says that wife is excuded from the return (radd) forever. But wife of sabab and mother of nasab have possibility to get the return. See Muḥammad Ḥasan al-Najafī, Jawāhir al-Kalām fī Sharḥ Sharāi‘ al-Islām, Vol. 39. (Bayrūt: Dār Iḥyā’ al-Turāth al-‘Arabī, 1981), p. 8. Fyzee says that neither husband nor wife is entitled to the return as long as there are any other heirs. But if the husband in the only surviving heir, he inherits the whole properties. In the case of widow, however, she also inherits the return as the husband does if she the only surviving heir in the contemporary fatwa. See Asaf A.A. Fyzee, Outlines of Muhammadan Law (New Delhi: Oxford University Press, 1974), 461.

[10] Qarābah means the heirs who exhaust the remainder of properties left by Qur’anic heirs. This term is parallel with the term ‘aṣabah of Sunnite inheritance system however the qarābah consists of ‘aṣābah (consanguine) and dhawī al-arḥām (uterine) heirs as well.

[11] Muḥammad Ḥasan al-Najafī, Jawāhir al-Kalām fī Sharḥ Sharāi‘ al-Islām, Vol. 39. (Bayrūt: Dār Iḥyā’ al-Turāth al-‘Arabī, 1981), pp. 10-11 and also see Abū al-Qāsim Najm al-Dīn Ja‘far ibn al-Ḥasan, Sharā’i‘ al-Islām fī Masā’il al-Ḥalāl wa al-Ḥarām, Vol. 3 and 4, (Bayrūt: Dār al-Qāri’, 2004), 261-262.

[12] When the deceased has no children and the mother shares inheritance with the deceased’s father, the mother has two possibilities of shares. The first, when there are the heirs who exclude the mother to get maximal share (ḥājib nuqṣān), namely two brothers, or four sisters, and or one brother and two sisters descended from the same father and mother or only father, the mother takes one-sixth (1/6). The second, when there is no ḥājib nuqṣān, the mother takes one-third (1/3). The father takes residue of the two possibilities; five-sixth (5/6) or two-third (2/3). See Ayat Allāh al-‘Uẓmā al-Sayyid Mūsā al-Ḥusaynī al-Zanjānī, al-Masā’il al-Shar‘iyyah, (Qum: Mu’assasah Nashr al-Faqāhah, 1428H),  pp. 643-4.

[13] Dhimmah is the term used to designate the sort of indefinitely renewed contract through which the Muslim community accords hospitality and protection to members of other revealed religions. The beneficiaries of dhimmah called dhimmī or ahl al-dhimmah, see CL. Cahen, “Dhimma” in The Encyclopedia of Islam, Vol. II (C-G), B. Lewis, CH. Pellat and J. Schacht (eds) (Leiden: E.J. Brill, 1991), p. 227.

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