Thursday, 20 September 2012

Do Women Take Unequal Shares of Inheritance?

بِسۡمِ ٱللهِ ٱلرَّحۡمَـٰنِ ٱلرَّحِيمِ

The following is taken from Do Women take Unequal Shares of Inheritance in Islam? by Shaykh ‘Ali Juma’ah.

It is commonly stated in contemporary times that Islam oppresses women by making their inheritance half that of men.  As Muslims, we have firm conviction in Allah’s (s.w.t.) Immutable Attributes and this conviction keeps such claims from affecting our hearts.  We believe that Allah (s.w.t.) is a Fair Judge and that His Justice is Absolute: no injustice towards humans or any other creature is found in His Sacred Law.  The Qur’an Says:


… and not one will thy Lord treat with injustice. (Surah al-Kahf:49)

  
… for verily Allah is not unjust to His servants. (Surah al-Hajj:10)

  
… it was not Allah Who injured (or oppressed) them: they injured (and oppressed) their own souls. (Surah al-‘Ankabut:40)

Therefore, such a statement does not shake our conviction, but rather calls for an in-depth analysis of the inheritance law stipulated by the Qur'an.  The difference in inheritance is not based on the gender of the heir, but on three primary conditions:

1.         The degree of kinship to the deceased: Regardless of whether the heir is male or female, the closer the relationship to the deceased, the more an individual will inherit.  For example, a deceased woman’s daughter is entitled to half the inheritance while the husband of the deceased only receives one fourth.  This is because the daughter, as an immediate blood relative, is closer in relation than the husband.  Therefore the amount of inheritance she receives is greater.

2.         The generation to which the heir belongs: Grandchildren usually receive more inheritance than grandparents because they will confront future financial responsibilities, whereas others usually maintain the financial upkeep of grandparents.  The system functions this way regardless of gender: despite the fact that they are both women, the daughter of the deceased inherits more than the deceased’s mother because they belong to different generations.  Likewise, the daughter of the deceased inherits more than the deceased’s father.  This is so even if she has a living brother who inherits with her.

3.         Financial Responsibility: It is in this category alone that shares of inheritance differ according to gender.  However, this disparity causes no injustice to the female.  When a group of inheritors, such as the children of the deceased, are equal in the first two aforementioned factors, then their shares are affected by the third.  In this specific scenario the misunderstood Qur’anic verses alluded to in the original question come into play.  The Quran has not made the disparity between men and women a general condition, but rather has confined it to this specific situation.  When the individuals in a group of heirs are equal in both their relation to the deceased and their age, the male son of the deceased receives twice as much as the female daughter of the deceased.  The wisdom behind this arrangement is as follows: the male is responsible for the financial upkeep of his wife and children, whereas his sister’s financial upkeep is the responsibility of an individual other than herself, such as her husband or father.  Thus, for all practical purposes, the disparity favours the woman because the wealth she inherits is not applicable to the household expenses and is hers to dispense with as she pleases.  This financial advantage also protects her from any circumstances that would place her in financial difficulty.  Unfortunately, few today understand this finer point of the Muslim inheritance system.

The financial responsibilities of men include the payment of a dowry, ongoing financial maintenance and support with no expectation of reciprocation, and financial support of their extended family if circumstances demand this.

These scenarios, and others, force us to conduct a more objective examination of property and wealth.  Wealth is a broader concept than income. Income becomes part of wealth but is not wealth itself, since wealth is that which remains after all expenditure.  In the scenarios where a woman receives half of the man’s inheritance, the woman’s new income is protected by the Shari‘ah and is hers to dispense with as she wishes.  The man’s new income, on the other hand, is to aid him in supporting family members that have now come under his care.  This is why we are able to say that Islamic inheritance laws protect the wealth of women and grant preference to them over men.

In other scenarios, men and women inherit the same amount.  For example, the children of a deceased women inherit the same amount; as Allah (s.w.t.) Says:


…If the man or woman whose inheritance is in question, has left neither ascendants nor descendants, but has left a brother or a sister, each one of the two, gets a sixth; but if more than two they share in a third... (Surah an-Nisa':12)

This equality of males and females in this case owes to the fact that they sprung from the same womb but do not share the same father.  Sharing the same father would cause the male child to inherit the father’s financial responsibilities, to the exclusion of the female child.  In the situation explained above, the son does not have those financial burdens so therefore his sister is equally entitled.

For these reasons, in special cases, Islam fixes the share of a woman as half that of a man.  Moreover, it ensures that her share is hers to keep, except for paying zakat. Allah (s.w.t.) Gives men a greater share but Commands them to spend on their wife, children and parents once they attain the age of maturity and are financially responsible.  By knowing this, we can appreciate that Islam biases women over men in terms of wealth, and assures that they keep their wealth without obliging them to spend it.

Therefore, when the issue of financial burdens does not exist, as in the case of inheritance for uterine brothers and sisters, we find that the Law-Giver Makes the share of inheritance of the male equal to that of the female.  Allah (s.w.t.) Says:


…If the man or woman whose inheritance is in question, has left neither ascendants nor descendants, but has left a brother or a sister, each one of the two, gets a sixth; but if more than two they share in a third... (Surah an-Nisa':12)

The reason why males and females receive an equal share of inheritance here is their maternal kinship, and they are not residuary for the deceased.  The man falls under the category of his lineage while the woman does not, for he does not bear any burden or responsibility in this respect.

Many facts are revealed by reviewing the following cases and issues of inheritance:

1.         There are only four cases where a male inherits double the share of a female.

2.         There are many cases where a female inherits a share equal to that of a male.

3.         There are more than ten cases where a woman inherits more than that of a male.

4.         There are cases where a woman inherits a share, but the man inherits nothing.

These cases are detailed as follows:

Cases Where a Woman is Entitled to Half the Share of a Man

1.         If the deceased leaves a daughter and a son, or a son’s son or a son’s daughter.

2.         If the deceased only leaves a father and mother and does not leave any children, a husband or a wife.

3.         If the deceased leaves full sisters and brothers.

4.         If the deceased leaves paternal half sisters and brothers.

Cases Where Women have a Share Equal to Men

1.         If the deceased leaves a father, a mother, and a son’s son.

2.         If the deceased leaves a uterine brother and sister.

3.         If the deceased leaves full sisters, and uterine brothers and sisters.

4.         If the deceased leaves a daughter, brother or the nearest residuary to the father with no one to exclude anyone from inheritance.

5.         If the deceased leaves a father, a maternal grandmother and a son’s son.

6.         If the deceased leaves a husband, a mother, two uterine sisters and a full brother. According to ‘Umar (r.a.), two uterine sisters and full brothers share one third equally.

7.         A man or a woman is entitled to the whole estate in cases where he or she is the sole heir. For example, the son inherits the whole estate as a residuary, while the daughter inherits half as a sharer and the remainder by the method of return.  In another example, if the deceased leaves only a father, the father will inherit the estate as a residuary, and if the deceased leaves only a mother, then she inherits a third as a sharer and the remainder goes to her by the method of return.

8.         If the deceased leaves her husband and a full sister, her sister inherits the same as the male.  If the deceased leaves a husband and full brother, the husband is entitled to half, while the remainder goes to her brother as a residuary.  If she leaves a husband and a sister, then the husband has half and the sister receives the remaining half as well.

9.         If the deceased leaves a uterine sister and a full brother.  If there is a husband, mother, uterine sister, and a full brother, then the husband is entitled to half, the mother is entitled to a sixth, the uterine sister is entitled to a sixth, and the remainder [one sixth] is given to the full brother as residuary.

10.       Dzaw ul-Arham, distant relatives, which is applied under Egyptian Law in Article 31 of Law no. 77 in 1943.  If there are no sharers or residuaries, then the distant relatives are the heirs. In this case, the estate is divided among them equally.  For instance, if the deceased leaves a daughter’s daughter, a daughter’s son, a maternal uncle and a maternal aunt, everyone will receive an equal share.

11.       There are six people who are never fully excluded from inheritance: three men and three women.  The three men are the husband, the son, and the father, and the three women are the wife, the daughter, and the mother.

Cases Where Women Inherit More Than Men

1.         If the deceased leaves a husband and one daughter.

2.         If the deceased leaves a husband and two daughters.

3.         If the deceased leaves a daughter and maternal uncles.

4.         If a woman dies leaving $60,000, and the heirs are her husband, father, mother and two daughters, the share of the two daughters is $32,000, where each inherits $16,000.  If the deceased leaves two sons instead of two daughters, then each son inherits $12,500, because the two daughters inherit two-thirds as sharers, while the two sons inherit the rest as residuaries.

5.         If a woman dies when her estate is worth $48,000, and she leaves a husband, two full sisters, and her mother, then the two sisters inherit two-thirds of the estate, which is $12,000.  If she leaves two brothers instead of two sisters, each brother inherits only $8,000 because they inherit the remainder of the estate after the husband and the mother receive their share.

6.         Similarly, if she leaves two paternal sisters, they inherit more than two paternal brothers.

7.         If a woman dies leaving a husband, a father, a mother, and a daughter and her estate is worth $156,000, then the daughter inherits half of the estate [$72,000], but if she leaves a son instead of a daughter, then he would only inherit $65,000 because she inherits as a sharer while he inherits as a residuary.  Sharers are given their share first and then the residuaries.

8.         If a woman dies leaving her husband, mother, and full sister, and her estate is worth $48,000, then the full sister inherits $18,000.  But if she leaves a full brother instead of a sister, then he inherits $8,000 because he only inherits as a residuary, whereas the sister would inherit as a sharer, like the husband and the mother.  In this case, the full sister inherits more than double the share of a full brother.

9.         If a man dies when his estate is worth $48,000, and he leaves a wife, mother, two uterine sisters, and two full brothers, then the two uterine sisters [who are the furthest relatives of the deceased] inherit $16,000, or $8,000 each, while the two full brothers inherit $12,000, or $6,000 each.

10.       If a woman leaves a husband, uterine sister, and two full brothers and her estate is worth $120,000, then the uterine sister inherits one-third of the estate, or $40,000, while the two full brothers inherit $20,000.  Thus, the uterine sister [who is the furthest relative of the deceased] receives a share which is four times that of the full brother.

11.       If the deceased leaves a father, mother, and husband, according to ibn ‘Abbas (r.a.), the husband inherits half, the mother is entitled to one-third and the remaining one-sixth goes to the father. The father here inherits half of his wife’s share.

12.       If a woman leaves a husband, mother, uterine sister, and two full brothers, and her estate is worth $60,000, the uterine sister inherits $10,000 while each brother inherits $5,000.  This means that the uterine sister’s share is double that of the full brother, even though she is a more distant relative to the deceased than him.

13.       If a man leaves a wife, a father, a mother, a daughter and his son’s daughter when the estate is worth $576,000, then the share of his son’s daughter is $96,000, whereas if he had left a son’s son instead of a son’s daughter, the share of his son’s son would only be $27,000.

14.       If the deceased leaves a mother, maternal grandmother, and paternal grandmother, and the estate is worth $60,000, then the mother inherits one-sixth as a sharer and the remainder by the method of return.  If the deceased leaves a father instead of a mother; meaning a father, a maternal grandmother, and a paternal grandmother, then the maternal grandmother will inherit one-sixth or $10,000 and will not be excluded. $10,000 and the reminder [$50,000] is given to the father.  The mother inherits the whole estate [$60,000] while if the father assumes her position he will only inherit $50,000 which means that she inherits more than him.

Cases Where Women Inherit & Men Do not

1.         If a woman leaves her husband, father, mother, daughter, and son’s daughter and her estate is worth $195,000, then the son’s daughter inherits one-sixth [$26,000].  However, if the woman leaves a son’s son instead of a son’s daughter, then his share will be zero, because he is a residuary who would inherit the remainder but there is no remainder.  This distribution is different from the law of obligatory bequest applied in Egyptian Law No. 71 of 1946, which contradicts the Islamic Schools of Thought.  Here, I mean the authentic schools that maintain that women inherit in some cases, while men do not.

2.         If a woman leaves a husband, full sister, and paternal sister and her estate is worth $84,000, the paternal sister inherits one-sixth, or $12,000, while if there is a paternal brother instead, he will inherit nothing.  The husband will inherit half of her estate and the full sister will inherit half, and the remainder [nothing] goes to the paternal brother.

3.         The grandmother in many cases has a share in the inheritance while the grandfather does not.  By viewing the rules of inheritance for grandparents, I have noticed the following: a grandfather who is related to the deceased from the father’s side, such as the paternal grandfather or the paternal great-grandfather, whoever is closer to the deceased, have no share in inheritance while the maternal grandfather or maternal great-grandfather also have no share in the inheritance.  The grandmother, who is entitled to inheritance, is the one whose relation to the deceased does not include a grandfather, who is not entitled to inheritance, or if she is the grandmother whose relation to the deceased does not include a father between two mothers.  Thus, the mother of the mother’s father is not entitled to inheritance while the mother of the father’s mother is entitled to it.

4.         If the deceased leaves a maternal grandfather and maternal grandmother, then the maternal grandmother inherits the whole estate and takes one-sixth as a sharer, in addition to the residue by the method of return, while the maternal grandfather inherits nothing, since he is a disinherited grandfather.

5.         It is the same when a man dies leaving a maternal great-grandfather and maternal great-grandmother. The maternal great-grandmother inherits the whole estate, because she inherits one-sixth as a sharer and the remainder by the method of return, whereas the maternal great-grandfather inherits nothing since he is not entitled as a grandfather.

Thus, there are more than thirty cases where a woman inherits the same as or more than a man, or where she has a share and he does not.  In contrast, there are only four cases where a woman inherits half the share of a man.  These are the results of examining the cases and issues in the law of inheritance.  I think that this misconception is now clear.


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