Home
Discover Islam
Quran Recitations
Lectures
Fatwa
Articles
Fiqh
E-Books
Women
Boys & Girls 
Enter Question
View By Subject
Fatwa Of The Week
Selected Fatwa
Fatwa CenterDivision of estate if deceased left house and business to wife
Question
Assalaamu alaykum. Please calculate the inheritance according to the following information:
- Does the deceased have male relatives who are entitled to inherit: (A son) Number 1 (A grandson [from the son]) Number 1
- Does the deceased have female relatives who are entitled to inherit: (A daughter) Number 3 (A granddaughter [from the son]) Number 1 (A wife) Number 1 (A full sister) Number 1
- Additional information: The deceased was separated from his wife over 20 years ago. He had left the wife a home and a business to raise the children. He did the same for his first family. He later remarried and had other children. Now that he has passed away, his family is seeking to have the home which was left to the wife years ago divided among all the orphans (including children not belonging to that wife). Is this allowed in the Sharia?
Answer
All perfect praise be to Allah, The Lord of the worlds. I testify that there is none worthy of worship except Allah and that Muhammad 
is His slave and Messenger.
If the heirs are only those mentioned in the question and the deceased did not leave any other heir, then the wife gets one eighth as her legal share due to the existence of the children (direct heirs); Allah says (what means): {But if you leave a child, then for them [i.e. the wives] is an eighth of what you leave, after any bequest you [may have] made or debt.} [Quran 4:12]
The remainder will be divided amongst his son and his three daughters by virtue of Ta’seeb (having a paternal relation with the deceased and not having an allotted share, so they get what is left after the allotted shares have been distributed), the male twice the share of the female, as Allah says (what means): {Allah instructs you concerning your children [i.e. their portions of inheritance]: for the male, what is equal to the share of two females.} [Quran 4:11]
His grandson and granddaughter do not get anything from the inheritance because they do not inherit because of the presence of the direct son of the deceased. The Fiqh Encyclopedia reads, “The jurists (scholars of Fiqh) agreed in a consensus that the grandson is among the ‘Asabah (i.e. the relatives who do not have a prescribed share of inheritance and who take the remainder of the inheritance after each heir has taken his prescribed share of inheritance) and that he is prevented from inheritance by the direct son of the deceased...”
His full-sister also does not get anything from the inheritance as she does not inherit due to the presence of the son. Ibn Al-Munthir 
said, “The scholars agreed in a consensus that the full-brothers and full-sisters and the half-brothers and sisters from the father’s side only do not inherit if there is a son or a son of a son down to all levels...”
Therefore, the inheritance should be divided into 40 shares, the wife gets one eighth, which is 5 shares; the son gets 14 shares; and each of the three daughters gets 7 shares.
As regards what you mentioned about the wife and the house, then if by ‘separation’ you mean that he divorced her, then the wife is not considered among the heirs and has no right in the inheritance; if, by ‘separation’, you mean that he just left her and stayed distant from her without divorcing her, then she is considered among the heirs and is entitled to her legitimate share in the inheritance. For more benefit, please refer to fatwas 89825 and 82732.
As regards the house, if he had given it to her as a gift (Hibah) and she took it into her possession, fulfilling the conditions of a Hibah in the Sharia, then the house is not considered part of the inheritance and the heirs do not have any right in it. However, if the conditions of Hibah were not fulfilled, or if he did not gift it to her in principle but only allowed them to benefit from it by living in it, then in that case the house is considered among the totality of the inheritance and each heir has a right in it according to his legitimate share.
In case there is a dispute about the inheritance, then the matter should be taken to an Islamic court – if any is available – in order to look into the case, investigate it, and listen to all the parties. In case there is no Islamic court, then the case must be presented orally to a trustworthy scholar who would listen to all the parties, and it is only in this case that it will become clear whether or not the heirs have a right in the house.
Allah knows best.
Search Fatwa
Fatwa Subject
