Position Paper on Islamic Inheritance
A source of significant controversy both inside and outside the
Muslim community is the Islamic law of inheritance. This "law" is in
fact a continuing process of interpretation of Quranic rules and
principles to form the complex "laws" of inheritance under Islam. It
is a dynamic process which, based on specific text in the Quran and
traditions of the Prophet Muhammad, continues to be discussed in
each Islamic age by Muslim scholars addressing changing issues and
times.
Before delving into this complicated and controversial area, one
must first realize that Islam revolutionized womenÕs inheritance
rights. Prior to the Quranic injunction -- and indeed in the west
until only recently -- women could not inherit from their relatives,
and in the case of Arabia at least, were themselves bequeathed as if
they were property to be distributed at the death of a husband,
father, or brother. Thus, Islam, by clearly stating in the Quran
that women have the right to inherit for themselves, changed the
status of women in an unprecedented fashion. The Quran states: "Men
shall have a share in what parents and kinsfolk leave behind, and
women shall have a share in what parents and kinsfolk leave behind."
(Quran 4:7). Thus, whether women can inherit at all is not the
controversy. Rather, the dispute centers around the "share" that is
to be inherited.
The same chapter of the Quran goes on to state in detail the
division of property based on the number of relatives and the level
of kinship of the inheritor. (See Quran 4:11) The injunction that a
male relative receives a share equal to that of two females applies
only to the inheritance of children by their parents. Parents who
inherit from a deceased child, for example, each inherit one-sixth
of the property if the deceased child is survived by a child of his
or her own. In that instance, the division is equal between the
mother and the father of the deceased. The verse then states what
the mother shall receive if the deceased left no children or if the
deceased left siblings. Presumably, the father and the mother
inherit equally in those situations. The rationale behind a brother
receiving double his sisterÕs share, on the other hand, is based on
the Islamic legal presumption that he has an obligation to provide
for her support. Bearing in mind that these verses were revealed in
Arabia over 1400 years ago, when women had no financial security
other than what was provided by men, these verses demonstrate the
care and respect given to the family unit, and ensured that womenÕs
rights would continue to be protected. Hence, brothers with sisters
were given larger shares than their sisters, together with the legal
obligation to spend a portion of this wealth on those sisters.
Within the field of Islamic scholarship, there is much discussion on
the topic of inheritance. There are scholars who argue that these
rules apply only if no will was left by the deceased and that the
division can be changed by a will. Presumably, the will would be
analogous to a debt and would be paid prior to any other
disbursement of property. (See Quran 4:11; Fathi Osman, Muslim Women
in the Family and in the Society, at 24-25.) Furthermore, a
tradition of the Prophet Muhammad states that a person can will up
to one-third of his or her property in any manner, thus allowing
equalization of gender-based default presumptions. (It should be
noted that a majority of the Sunni schools of thought state that the
one-third share cannot be bequeathed to natural heirs; however,
others, including the Shiite school, disagree with this limitation.)
Moreover, transfers of property can be made during the life of the
testator.
The majority of schools argue that the verses provide guidance as to
who should be provided for and at what level. Furthermore, there are
scholars who maintain that these laws are applicable only in an
Islamically-based legal system and government where a woman would
have recourse against a relative who was obligated to provide for
her but failed to do so. One may argue that in the absence of a
complete application of Islamic law, where the rights of women will
have no teeth, Muslims should turn to the spirit of that law, which
is justice, and find ways to accomplish this goal. This is
especially true where Muslims are a minority, as in the United
States. Muslim scholars, legislators, and researchers must -- and
are beginning to -- boldly address this issue to focus on these
challenges. The Islamic laws of inheritance are, like all issues in
Islamic law, a dynamic process that must respond to the many
challenges and opportunities that world changes present.
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