inheritance is when living persons rightfully acquire dead persons' property. it exists in some form wherever the institution of private property is recognized as the basis of the social and economic system. the actual forms of inheritance and the laws governing them, however, differ according to the ideals of different societies. the law of inheritance in islam is based upon five main considerations:
1- to break up the concentration of wealth from the hands of few individuals and to spread it out in society.
2- to respect right of individual ownership and property earned through honest means.
3- to drive into people’s consciousness the fact that they are not the absolute masters of the wealth they produce but they are only trustees and are not, therefore, authorized to pass this wealth on to others as they like.
4- to consolidate the family system, which is the social unit of an islamic society.
5- to give incentive to work and encourage economic activity as sanctioned by islam.
in the pre-islamic world and even in modern societies, the laws of inheritance have so many evils inherent in them, which may be summed up in the following points:
· women had been completely denied a share of inheritance; they were, rather, regarded as part of the property of the deceased and, therefore, their right to inherited property was out of question.
· in pre-islamic arabia, and other countries where there had been tribal societies, not only were women deprived of the right of inheritance but even weak and sick persons and minors (children) were given no share in the inheritance. the common principle of inheritance was that “he alone is entitled to inherit who wields the sword.”
· then, in certain societies, there was in existence the law of primogeniture, which exists even today in some of the so-called civilized parts of the world and entitles only the eldest son to inherit the whole of the father's property or at least to get the lion's share.
islam introduced so many reforms in the laws of inheritance and they can be succinctly summed up as follows.
· islam defined and determined in clear-cut terms the share of each inheritor and it imposed limits on the right of the property owner to dispose of his property according to his whims and caprices.
· islam made the female—who had been previously thought of as a chattel—the co-sharer with the male; thus, not only restoring her dignity, but safeguarding her social and economic rights.
· islam laid the rules for the breakup of concentrated wealth in society and helped in its proper and equitable distribution amongst a large number of persons.
· islam gave a death blow to the law of primogeniture and provided a fair basis for the division of the deceased’s property.
the above are some of the distinguishing features of the islamic law of inheritance. while laying down the rules for the distribution of the deceased’s estate, the first principle to be observed is that the property, both movable and immovable, can be distributed after meeting the following obligations:
· funeral expenses
· clearing of any debts incurred by the deceased
· payment of bequests, if any, to the extent of one-third of the total assets. it should be remembered that the wife’s mahr (dowry), if it had not been paid, must be included in the debt. moreover, it is not lawful to make a bequest in favor of a person who is entitled to a share in the inheritance.
in this way, the rights of all the parties concerned are preserved. the deceased receives due tribute and honor by giving priority to his funeral expenses; besides, the debtors’ rights will not be absolved by the passing away of the deceased; only then will the remaining property be distributed among the heirs fairly, without any interference and without preference of one party over another by the deceased.