Fatwa No : 83051
The ruling on the inheritance of a son who passes away during the lifetime of his father

The ruling on the inheritance of a son who passes away during the lifetime of his father

Respected Mufti Sahib! Our honorable father passed away in March 2025 by the will of Allah. We are four brothers and two sisters. The eldest brother passed away (also by Allah’s will) a few years before our father's death. During his lifetime, our father transferred the house in our mother's name, but without formally handing over legal ownership. After our mother passed away, our father remarried. His second wife is still alive, but he had no children from her. We seek your guidance for the Shar‘i distribution of inheritance. The details of the heirs are as follows: (1) One wife (our father’s second wife, currently .alive) (2) Three living sons; one son is deceased (before the father) (3) Two daughters
The deceased elder brother is survived by: His widow; Two sons; Two married daughters The total amount to be distributed is 4 million rupees (40 lakhs). We kindly request a Shar‘i fatwa on how this amount should be divided among the heirs mentioned. Jazakum Allahu Khayran.

الجوابُ حامِدا ًو مُصلیِّا ً

It should be clearly understood that, in Shari‘ah, merely assigning something in someone’s name or verbally giving it to them does not make them the legal owner unless they are also given full possession and control (malikana qabzah) over that item. Therefore, if the deceased father had only transferred the house in his wife's (the questioner's mother’s) name on paper, without giving her formal ownership and possession (as seems to be the case based on the question), then she did not become the owner of that house according to Islamic law. Rather, the house remained the property of the deceased father during his lifetime, and now, after his death, it will be counted as part of his inheritance, and must be distributed among all rightful heirs according to their respective Shar‘i shares.
If a son or daughter passes away during the lifetime of their parents, then according to Shari‘ah, the children of the deceased son or daughter do not inherit from their grandfather, grandmother, or maternal grandparents in the presence of the other heirs. They have no rightful share in the inheritance, nor can they demand it. Therefore, since the questioner's elder brother passed away during the lifetime of their father, neither he nor his children are entitled to any share in the deceased father's estate according to Islamic law. However, if the living heirs voluntarily choose to give them something, it is permissible in Shari‘ah, and in fact, it would be a virtuous and rewarding act. Nevertheless, doing so is not obligatory or binding on the heirs.
Thereafter, it should be understood that the estate of the deceased father must be distributed among his surviving heirs according to the Islamic laws of inheritance as follows: At the time of death, whatever the deceased left behind in his ownership—including the house, movable and immovable property, gold, silver, jewelry, cash, and all kinds of household items—should be treated as part of the estate (tarikah). From this estate: First, the average burial and funeral expenses of the deceased should be paid. Then, if the deceased had any debts, they must be settled. If the mahr (dower) of the wife (if unpaid and not forgiven) is due, it must also be paid. Next, if the deceased had made a valid will, it should be executed from up to one-third (1/3) of the remaining wealth. After fulfilling the above obligations, the remaining estate is to be divided into 64 equal shares as follows: The wife (widow) will receive 8 shares. Each son will receive 14 shares. Each daughter will receive 7 shares.

مأخَذُ الفَتوی

کما فی الشامیۃ:وشروطه ثلاثة: موت مورث حقيقةً أو حكمًا كمفقود أو تقديرًا كجنين فيه غرة، ووجود وارثه عند موته حيًّا حقيقةً أو تقديرًا كالحمل،والعلم بجهل إرثه"( كتاب الفرائض ٦/ ۷۵٦ ط:سعيد)۔
وفی الدر المختار : (و تتم) الهبة (بالقبض)الكامل (و لو الموهوب شاغلاً لملك الواهب لا مشغولاً به)والأصل أن الموهوب إن مشغولاً بملك الواهب منع تمامها وإن شاغلاً لا اھ (5/690)۔