Division of inheritance among 2 sons and 3 daughters
23-6-2014 | IslamWeb
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 2 -Does the deceased have female relatives who are entitled to inherit : (A daughter) Number 2 - The will which the deceased left behind and that is related to his inheritance is : The deceased has a grand daughter , who's dad is divorced her mum, and mother re married. so the deceased has 5 kids and she asked to keep a share for her granddaughter to keep the money for her wedding expenses. SO ITS 5+1 but just aftr the deceased passed away her daughter also passed away aftr 2 months. so now the grand daughter will be getting the share of her passed away mom also, so the concern is if she s getting her mother's share , then should a separate share be kept for her as per the will?
Answer:
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His slave and messenger.
Firstly, we would like to point out that the daughter’s daughter is not entitled to any share in her grandmother’s estate because she is not among the eligible heirs entitled to inherit from her maternal grandmother. She is not to be counted among the heirs in the first place.
However, if the deceased’s daughter passed away before receiving her due share in the inheritance (of her mother), her share should be given to her heirs, including her daughter, i.e. the granddaughter of the deceased. The dead daughter’s share in that case should be divided among all the eligible heirs entitled to inherit from her estate and should not be given to her daughter only unless there are no other heirs entitled to inherit neither by Ta‘seeb (by virtue of 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) nor by fixed share.
You stated that the grandmother wanted to give her granddaughter a share in her inheritance. If you mean that this was a mere wish or intention, then it would not be considered a will as per the Sharee'ah, and the granddaughter would not be entitled to a share in her maternal grandmother’s estate. However, if you mean that the grandmother had stated that in her will, which has been confirmed by clear evidence or acknowledged by the heirs, then the granddaughter would be entitled to what the grandmother allocated to her in the will as long as it did not exceed one-third of the estate. If the grandmother made a will that her granddaughter should be given a share that exceeds one-third of the estate, the beneficiary of the will, i.e. the granddaughter, is entitled only to one-third and she cannot take the rest except with the consent of the other heirs.
In that case, the granddaughter would be entitled to her share in her mother’s share from the maternal grandmother’s estate along with the share stated in the will. She would be entitled to both, and her share in her grandmother’s will would not be waived because she would have then received her share in the mother’s share from the grandmother’s estate.
What we understood from the question is that the grandmother left behind two sons and three daughters – including the daughter who passed away afterwards – as you stated in the question. If that is the case, the deceased’s estate should be divided among her children by virtue of Ta‘seeb; the male gets double the share of the female. Allaah, The Exalted, says (what means): {Allaah instructs you concerning your children: for the male, what is equal to the share of two females…} [Quran 4:11] Hence, the estate should be divided into seven shares; each son gets two shares and each daughter gets one. The share of the dead daughter should be divided among all her heirs as stated above.
We would like to point out that the issue of inheritance is a very serious and complicated matter; therefore, it is not adequate to seek an online Fatwa in which the Mufti gives his answer based on what is merely stated in the received question. Instead, the case should be referred to the Sharee'ah-courts, if any, for investigation. If there are no Sharee'ah-courts, you can consult (local) scholars; perhaps there are other eligible heirs entitled to inherit that can only be discovered after investigation. Moreover, the deceased may be liable to debts, or made other bequests, or there may be other liabilities of which the heirs are unaware. It is well-known that these debts and liabilities should be given precedence over the right of the heirs in the deceased’s estate. Hence, you should not divide the estate without consulting the Sharee'ah-courts, if any, in order to foster the interest of both the dead and the living.
Allaah Knows best.