First: The principle in inheritance is that the heir must be alive at the time of the decedent’s death. The Prophet Muḥammad (peace be upon him) stipulated that a newborn must cry out to be entitled to their share; otherwise, they are considered as if they did not exist. Inheritance laws do not allocate shares to non-existent persons.
Second: The majority of jurists from the four main schools of Islamic thought agree that if a presumed heir, whether male or female, dies during the lifetime of the person from whom they would inherit, their share is forfeited and passes to the remaining living heirs, even if they have children.
They base this on the apparent wording of the Quranic verses on inheritance, which do not mention heirs who die during the lifetime of their ancestors, although they detail the inheritance laws.
Some scholars, however, believe that inheritance laws allow giving the share of a deceased heir to their children as a bequest (waṣiyyah) rather than as inheritance. They support this with the Quranic verse: “It is prescribed for you when death approaches one of you, if he leaves wealth, that he makes a bequest to parents and near relatives according to what is acceptable – a duty upon the righteous” [Al-Baqarah: 180]. They argue that this verse is definitive and not abrogated, citing scholars like Sa῾īd ibn al-Musayyib, Al-Ḥasan al-Baṣrī, Ṭāwūs, Imam ᾽Aḥmad, Dāwūd, Aṭ-Ṭabarī, Isḥāq ibn Rahwayh, and Ibn Ḥazm.
Third: Modern legal systems in some Islamic countries have benefited from this scholarly difference and have established the concept of a mandatory bequest for certain heirs, such as the descendants of a deceased child at the life of their ancestors, regardless of how many generations down, as long as they are son-related descendants. As for the daughter-related descendants, they are entitled to it if they are from the first generation only. Son-related descendants include those whose lineage to the deceased does not include a female (e.g., son of a son, or son of a grandson, regardless how many generations down, and daughter of a son, regardless how many generations down to her father), whereas daughter-related descendants include those whose lineage does involve a female (e.g., son of a daughter or son of a granddaughter). The mandatory bequest is granted if the deceased child was a male without restriction to generation, but if the deceased child was a female, the bequest is limited to her children and not her grandchildren.
The amount of this mandatory bequest is what their ancestor would have inherited, not exceeding one-third of the estate. If the amount exceeds this, it requires the approval of the other heirs.
The conditions for this mandatory bequest are:
- The descendant receiving the bequest should not be an inheritor from the decedent’s estate, meaning they should not have an uncle who is a closer heir.
- Grandchildren do not receive the mandatory bequest if the grandfather or grandmother has already bequeathed to them an amount equal to what they would receive from the mandatory bequest. If they were given less than one-third, a bequest should be made to complete their share up to what their parent would have received or up to one-third if their share is greater.
- The descendant receiving the mandatory bequest should not have killed the decedent and should not be the child of someone disqualified from inheritance due to killing or difference in religion.
We issue our fatwā in this regard based on the concept of the mandatory bequest because it serves the interests of the deceased’s children, preventing them from being neglected among other heirs like uncles. Just as a grandfather inherits from a grandchild, a grandchild should inherit from a grandfather.
Therefore, the children of this daughter are entitled to their mother’s share, if she had been alive, not exceeding one-third of the estate.
Fatwā issued by Dr. Khālid Naṣr
