Fatwa No : 84993
Request for a Fatwa regarding the Distribution of Inheritance.

Request for a Fatwa regarding the Distribution of Inheritance.

What do the honorable scholars say regarding the following matter: My brother (Muhammad Ilyas, deceased) passed away approximately five months ago. His surviving heirs are: two sons (Muhammad Ayaan and Muhammad Zaneen), one widow (Raheela), and one brother (Muhammad Abbas). The parents of the deceased had already passed away during his lifetime. Among the assets left by the deceased are: A plot measuring eight and a half marlas, Some agricultural land, And certain dowry items which he had purchased from his first wife and then gifted to his second wife. The question is: Should these dowry items be considered the personal property of the widow, or should they be treated as part of the estate and thus distributed among all the heirs according to their respective shares? This is because, in our family tradition, anything that the husband or his sisters give to the daughter-in-law at the time of marriage is considered her personal property, and such items are never demanded back. In light of these points, please provide a ruling so that you may be rewarded by Allah.
Note: Muhammad Zaneen is the son from the brother’s previous wife, who obtained khula and remarried. Will he inherit from this estate or not?

الجوابُ حامِدا ًو مُصلیِّا ً

Since the late Muhammad Ilyas had purchased the dowry items from his first wife and then gifted them (hiba) to his second wife, and had given her full ownership and possession, this hiba became complete and valid. Therefore, the second wife became the rightful owner of all those items, and it is not permissible to treat them as part of the inheritance to be distributed among the heirs, which must be avoided. Furthermore, just as the children of the second wife are entitled to inherit from the deceased, the son from the first wife is also entitled to inherit as a legitimate son, as shown in the detailed chart below.
It should also be understood that the estate of the deceased brother will be distributed among the mentioned heirs according to the principles of Islamic inheritance in such a way that whatever movable and immovable property—gold, silver, jewelry, cash, and all types of household items—the deceased left at the time of his passing, first the moderate expenses for his shrouding and burial should be paid. Then, if the deceased had any debts or had not paid the mahr (dower) of his widow, and she has not forgiven it, these must also be paid as they are considered obligatory. Next, if the deceased made any valid will, it should be executed from up to one-third of the remaining estate. The remainder should be divided into sixteen shares, of which the widow receives two shares, and from the remaining fourteen shares, each son receives seven shares. The deceased’s brother, Muhammad Abbas, will not be entitled to any share of the inheritance.

مأخَذُ الفَتوی

كما في الهداية شرح البداية : والقبض لا بد منه لثبوت الملك اھ (3/ 224)۔
وفيه ايضاً: قال وإذا كانت العين في يد الموهوب له ملكها بالهبة وإن لم يجدد فيها قبضا لأن العين في قبضه والقبض هو الشرط اھ (3/ 226)۔