بَابُ الْفَرَائِضِInheritance

¹ The statement: Whatever remains is for the closest male relative, They agreed that what remains after the fixed shares is for the agnates, with the closest taking precedence, so a distant agnate does not inherit in the presence of a closer one. This hadith is their evidence. Then, after prioritizing by degree of closeness, they prioritize by strength of kinship, meaning one with two ties is preferred over one with a single tie, whether male or female, due to the statement: Full siblings inherit to the exclusion of paternal siblings, meaning full siblings are more entitled to inheritance than paternal siblings. The mention of the mother here is to highlight what gives full siblings precedence over paternal siblings, such as a brother or sister from both parents, when they become agnates with a daughter, being more entitled than a brother from the father. If you say: The statement whether male or female is redundant, as the discussion is about agnates by themselves, and they are never female. I say: We concede this, but since he intended to clarify here that a sister from both parents, when she becomes an agnate with daughters, is also more entitled than a brother from the father, this condition was mentioned. As derived from Al-Marqah, As-Sirajiyyah, Ash-Sharifiyyah, and Al-Bayhaqi.

² The statement: Ruled that debts are settled before bequests, For this reason, their scholars said: Four rights are attached to the deceased’s estate in order. First, burial and preparation without extravagance or stinginess. Then, debts are settled from all that remains of the wealth. Then, bequests are fulfilled from one-third of what remains after debts. Then, the remainder is divided among the heirs according to the Qur’an, Sunnah, and consensus of the Ummah. As stated in As-Sirajiyyah. If you say: If debts take precedence over bequests, why were they mentioned after in the revelation? I say: Due to the importance of bequests, as they resemble inheritance in being taken without compensation, their fulfillment is burdensome for heirs and significant, and their souls are not at ease with it, making it prone to neglect, unlike debts, which their souls are inclined to settle. Thus, bequests were mentioned before debts to emphasize their obligation and urge haste in fulfilling them alongside debts. As stated in Al-Marqah.

³ The statement: Full siblings inherit to the exclusion of paternal siblings, Some of our meticulous scholars said: The notables of a people are their elites, and full siblings are called the notables. The mention of the mother here is to clarify what gives full siblings precedence over paternal siblings. The meaning is that when full siblings are present with paternal siblings, the inheritance goes to full siblings due to the strength of kinship and dual connection. As stated in Al-Marqah. In Dhaw’ As-Siraj: If it is said: The hadith uses the term sons, which includes males but not females. We say: Not so, rather it includes females just as it includes males. Allah says in the Qur’an: O children of Adam [Al-A’raf: 26], and the address includes women as it includes men.

¹ The statement: A Muslim does not inherit from a disbeliever, nor a disbeliever from a Muslim, As for the disbeliever, they do not inherit from a Muslim by consensus, supported by the hadith and the verse: And Allah will never grant the disbelievers a way over the believers [An-Nisa: 141]. Inheritance establishes a way for the disbeliever over the Muslim. As for whether a Muslim inherits from a disbeliever, most Companions said they do not, and this is the view of our scholars and Shafi’i. As for an apostate, they do not inherit from a Muslim by consensus. Regarding a Muslim inheriting from an apostate, there is disagreement. According to Malik, Shafi’i, and Ahmad, a Muslim does not inherit from them. Abu Hanifah said: What they earned during apostasy goes to the public treasury, and what they earned during Islam goes to their Muslim heirs. Abu Yusuf and Muhammad said: Both earnings go to their heirs. Shafi’i said: Both are spoils, as they died a disbeliever, and a Muslim does not inherit from a disbeliever, and their wealth is that of a belligerent with no protection, so it becomes spoils. Our view is that their ownership after apostasy remains, so it transfers upon their death to their heirs, based on their state before apostasy, as apostasy is a cause of death, making it inheritance from a Muslim to a Muslim. This basis is also necessary for the other three Imams, as Muslims taking it when there is no heir is by way of inheritance, which legally requires basing it on their state before apostasy; otherwise, it would be inheritance from a disbeliever to a Muslim. The hadith refers to an original disbeliever who never embraced Islam. In Al-Bada’i, it is argued that when Ali (may Allah be pleased with him) killed Al-Mustawrid Al-Ijli for apostasy, he divided his wealth among his Muslim heirs in the presence of the Companions without objection, making it a consensus.

¹ The statement: Polytheists are allies of one another, They differed on the inheritance of people of different religions among disbelievers. The view of Malik and Ahmad is that they do not inherit from one another if they are of different religions, such as a Jew and a Christian, or others among disbelievers if their religions differ. Abu Hanifah and Shafi’i said: They are one nation, all disbelievers, so they inherit from one another. As stated in Rahmat Al-Ummah. The meaning in the hadith of Abdullah ibn Umar, People of two different religions do not inherit from one another, is Islam and disbelief, as all disbelievers are one nation when compared to Muslims, even if they consider themselves of different religions. As stated in Al-Marqah.

¹ The statement: A woman inherits, It appears from Al-Irshad Ar-Radi that the significance of specifying a woman here is that she takes the entire wealth from these three, unlike most inheritances.

² The statement: Her foundling, Most scholars hold that there is no patronage for the one who picks up a foundling, so calling it inheritance is metaphorical, as the foundling’s inheritance goes to the public treasury unless the picker is poor, in which case the leader may leave it for them as charity and compensation for their efforts in protecting and raising them. As stated in Al-Marqah and Bazl Al-Majhood.

³ The statement: Her child from whom she is not cursed, The child denied through mutual cursing has no inheritance with the father, as there is no dispute that neither inherits from the other, since inheritance is based on lineage, and the lineage is negated. As for their lineage through the mother, it is established, and they inherit from each other. As stated in Al-Marqah.

¹ The statement: The freedman of a people is one of them, Scholars interpreted “freedman” here as the freed slave, meaning they inherit from their patron if they have no agnate relatives by lineage, but the patron does not inherit from the freedman according to most. What Tirmidhi and Abu Dawud narrated from Ibn Abbas, that a man died leaving no heir except a slave he had freed, and the Prophet (ﷺ) asked: Does he have anyone? They said: No, except a slave he had freed. So the Prophet (ﷺ) assigned his inheritance to him. Ali Al-Qari said: This assignment is like what was mentioned earlier in Aishah’s hadith: Give his inheritance to a man from his village’s people, by way of charity, as his wealth goes to the public treasury. As stated in Al-Marqah. In As-Sirajiyyah: It begins with the fixed-share heirs, who have designated shares in Allah’s Book. Then the agnates by lineage, who take what the fixed-share heirs leave, and in their absence, take all the wealth. Then the agnates by cause, which is the patron of manumission, then their agnates in order. Then the return to the fixed-share heirs by lineage according to their rights. Then distant relatives, then the patron of alliance, then one acknowledged as a relative through another without established lineage through their acknowledgment, if the acknowledger dies upon their acknowledgment. Then the one bequeathed the entire wealth, then the public treasury.

¹ The statement: Those who inherit the wealth, Meaning from the male agnates, referring to agnates by themselves. Al-Muzhir said: This is specific, meaning every agnate who inherits the deceased’s wealth inherits the patronage. A woman, though she inherits, is not an agnate, as agnates are males, not females. If a freedman leaves his patron’s son and daughter, the inheritance is for the son only. If he leaves his patron’s daughter and sister, they have no right to it, and the patronage does not transfer to the public treasury. Women do not inherit through patronage unless they manumitted or their freed slave manumitted someone. As stated in Al-Marqah and Radd Al-Muhtar.

¹ The statement: The son of a people’s sister is one of them, This is used as evidence by those who support inheritance for distant relatives. Distant relatives inherit only if the deceased has no agnates or fixed-share heirs. This is the view of Abu Hanifah, Abu Yusuf, Muhammad, Ahmad, and most Companions, including Ali ibn Abi Talib, Ibn Mas’ud, Ibn Abbas in his most well-known narration, Mu’adh ibn Jabal, Abu Ad-Darda, Abu Ubaidah ibn Al-Jarrah, and the four Caliphs, as stated by Judge Abu Hazim. Uthman ibn Affan, Zayd ibn Thabit, and Abdullah ibn Az-Zubair (may Allah be pleased with them) held that distant relatives have no inheritance, and if someone dies leaving no fixed-share heir or agnate, their wealth goes to the public treasury. This is the view of Malik and Shafi’i, though Shafi’i’s followers today issue fatwas supporting inheritance for distant relatives based on the view of the people of revelation, considering the corruption of the public treasury. Abu Bakr As-Siddiq has two narrations on this. As stated in Umdat Al-Qari.

¹ The statement: Their ally is one of them, Meaning their confederate, referring to the patron of alliance, who inherits according to us if the deceased has no other heir. Ash-Sha’bi said: There is no patronage except that of manumission, and this is the view of Shafi’i and Zayd ibn Thabit. Our view is that of Umar, Ali, and Ibn Mas’ud. As stated in Al-Marqah. Tahtawi said: Alliance linguistically means friendship, opposite to dispute. In technical terms, it is when one says to another: You are my patron, you inherit me if I die and pay my blood money if I commit a crime, and the other says: I accept. Then the contract of patronage is valid, and the speaker becomes the patron, inheriting them if they die and paying their blood money if they commit a crime. If they stipulate conditions from both sides, it is according to the conditions; otherwise, the silent party’s wealth goes to the public treasury. It is permissible to retract before paying blood money, not after. Sadr Ash-Shari’ah said its condition is that the person’s lineage is unknown. Ibn Kamal said: This is not a condition.

² The statement: He is the most entitled of people to his life and death, This is evidence that if someone embraces Islam at the hands of a Muslim and dies with no heir except them, they receive the inheritance. Shafi’i and Malik say there is no inheritance, and the wealth goes to the public treasury. Hanafis and Qasimiyyah say they inherit, but Hanafis require a contract of alliance, meaning there is no inheritance if the person’s Islam is only at the hands of a Muslim, but if accompanied by a contract of alliance, the patron is most entitled to the inheritance in the absence of relatives. As stated in Nayl Al-Awtar. In the margin of Al-Kawkab Ad-Durri, Hanafis’ evidence is the hadith of Tamim Ad-Dari mentioned in this chapter, and Al-Ayni elaborated on its suitability for evidence.

¹ The statement: The killer does not inherit, Know that according to us, the killing that prevents inheritance is that which incurs retribution or expiation. Killing that incurs neither, such as killing for a cause or in retribution, does not cause deprivation, as deprivation of inheritance is a penalty, tied to what incurs a penalty, which is retribution or expiation. Shafi’i (may Allah have mercy on him) ties it to killing in general, so according to him, one does not inherit if they killed in retribution, by stoning, or if the relative was a judge who ruled for it, a witness who testified for it, an aggressor who was killed, or one who drew a sword against them and was killed in defense, all prevent inheritance according to him. This is meaningless, as the Lawgiver obligated or permitted killing in these cases, so how can a penalty be imposed for it afterward? Thus, other penalties for killing do not apply to such cases, and so too deprivation. As stated in Uqud Al-Jawahir Al-Munifah. I say: The following narrations support us.

² The statement: Muhammad ibn Al-Hasan narrated in Al-Athar, He said: We adopt this. A killer does not inherit from the one they killed, whether by mistake or intentionally, neither from the blood money nor otherwise. As stated in Uqud Al-Jawahir Al-Munifah.

¹ The statement: Inherit from her husband’s blood money, Muhammad said in his Muwatta: We adopt this. Every heir has a share in the blood money and the killing, whether a woman, a spouse, or otherwise. This is the view of Abu Hanifah and most of our jurists. As stated. In Sharh Al-Fara’id by As-Sayyid: Know that the blood money for one killed by mistake is like their other wealth, so their debts are settled from it, their bequests are fulfilled, and it is inherited by all who inherit their other wealth. Malik said: Spouses do not inherit from the blood money, as marriage ends with death, and blood money is not obligated until after it. Our evidence is this hadith. Az-Zuhri said: Ashyam’s killing was by mistake.

¹ The statement: Gave her one-sixth, For this reason, it is said in Sharh Al-Fara’id by As-Sayyid: A grandmother gets one-sixth, whether maternal or paternal, whether one or more, if they are established and equal in degree. They are all excluded by the mother, and paternal grandmothers are also excluded by the father. As for the interpretation of what Ibn Mas’ud (may Allah be pleased with him) narrated from the Prophet (ﷺ) that he gave the father’s mother one-sixth in the presence of the father, it may be that the father of that deceased was a slave or a disbeliever.

¹ The statement: If a newborn cries, The condition of crying is specified because it is the predominant sign of life. Otherwise, any sign of life found allows that newborn to inherit from their deceased relative who died before them. As stated in Bazl Al-Majhood.

² The statement: Inherits, In Sharh As-Sunnah: If a person dies and their heir is a fetus in the womb, the inheritance is reserved for them. If they are born alive, it is theirs. If they are born dead, they do not inherit, but it goes to the other heirs of the first deceased. If they are born alive and then die, they are inherited from, whether they cried or not, as long as a sign of life is found, such as sneezing, breathing, or movement indicating life, except for the twitching of one emerging from constriction. This is the view of Ath-Thawri, Al-Awza’i, Shafi’i, and the followers of Abu Hanifah. Some said they do not inherit unless they cry, citing this hadith. Crying means raising the voice. Others meant by it the presence of a sign of life, expressed as crying because it typically occurs at birth, and through it, their life is known. As stated in Al-Marqah.

¹ The statement: Whatever inheritance was divided in the pre-Islamic era, It is derived from this that a law applies to cases that arise after its establishment, but cases settled before it have no connection to this law. As derived from some marginal notes.

The saying of Allah, the Mighty and Exalted: “After any bequest he may have made or debt, as long as it causes no harm” [An-Nisa: 12].