Inheritance of Spouses
It is a common practice to begin with learning about the shares of the husband and wife due to their relative simplicity. In the Quran, the shares of children and parents are presented before the shares of spouses. However, the scholars structured the study of Inheritance in a manner that best fits the presentation and study of the topic. This is analogous to why scholars teaching the Quran to children start with short chapters despite the fact that the longer ones appear before the shorter ones.
Definition
There is no need to put an effort in explaining something obvious. Therefore, we will not use legal jargon to define a spouse. In simple terms, a husband and wife are individuals connected through the bond of marriage.
There are three points to highlight here:
First, the marriage bond is only considered if it was effective at the time of death. This can be translated to the following question: Was X the spouse of Y when Y passed away? The main implication of this is that an ex-spouse is not considered an heir under any circumstance. Similarly, a fiancé, where only a promise-to-marry was established, cannot be considered an heir.
Second, the marriage has to be recognized by Islamic law. This does not mean getting a specific official record or documentation. It simply means that the marriage contract is considered valid according to Islamic rules. Examples of invalid marriage contracts include a marriage conducted in secret without presence of witnesses or a marriage between a non-marriable couple.
Third, since Islamic law requires a woman to attend a waiting period after divorce, we need to investigate whether inheritance rules consider the couple as married during this period. To answer that, we need to remember that there are two types of divorce: revocable and irrevocable. A revocable divorce is one in which the husband maintains the right to override the divorce and resume the marriage without the need to re-initiate the marriage contract. An irrevocable divorce is one in which the husband lacks such right.
A woman attending the waiting period of a revocable divorce is considered a legal wife for the purposes of inheritance. Therefore, if either spouse dies during this period they are entitled to inheritance. On the other hand, a woman attending the waiting period of an irrevocable divorce is not considered a legal wife and thus neither spouse can inherit from the other.
Classification
Both the husband and wife are considered Primary Heirs. This means they are part of the first group of relatives which are given priority when dividing the estate under ordinary circumstances.
Within the Primary Heir group, they are both classified as Fixed-Share Heirs. This means they are allocated a fixed share in each scenario. They can never inherit through the Principle of Universality.
They are also the only two individuals that inherit through the Channel of Marriage. Individuals like step sons, step daughters, step father, step mother, a father-in-law, a mother in-law and a brother-in-law are related to the deceased through the Channel of Marriage. However, none of them are classified as heirs or even extended relatives. Thus we can say that all individuals connected to the deceased through the bond of marriage are not considered heirs with the exception of the husband and wife.
Exclusion Rules
The husband and wife are never excluded by other heirs. This means they are always entitled to receive a share of the estate.
This makes them among the strongest heirs. Indeed, this privilege is only granted to six heirs: Husband, Wife, Son, Daughter, Father and Mother.
Remember that a spouse, just like any other heir, is prevented from inheritance if they murdered, or participated in the murder of their partner. Also, if they do not share the same religion as the deceased, then they are prevented from inheritance. This means a Muslim man married to a Christian or Jewish woman cannot inherit from her. The reverse is also true, as a Christian or Jewish woman cannot inherit from her Muslim husband. However, a proportion of the wealth could be assigned to one of them through the avenue of bequest, as long as it does not exceed one third from the entire estate.
The Husband’s Share
A Husband is entitled to a fixed share of either 1/2 or 1/4.
The Husband receives 1/2 of his wife’s estate if she has no inheriting descendants.
If the deceased woman has one or more inheriting descendants, then the husband receives 1/4 of the estate.
Heir | Share | Conditions |
Husband | 1/2 | Wife has no inheriting descendant |
1/4 | Wife has an inheriting descendant |
The Wife’s Share
A wife is entitled a fixed share of either 1/4 or 1/8.
The wife receives 1/4 of her husband’s estate if he has no inheriting descendants. If the deceased man has one or more inheriting descendants, then the wife receives 1/8 of the estate.
Heir | Share | Conditions |
Wife | 1/4 | Husband has no inheriting descendant |
1/8 | Husband has an inheriting descendant |
Note that if the husband has multiple wives, then they are jointly entitled to the 1/4 or 1/8 share of the estate. For example, if a husband has a son (inheriting descendant) and two wives, then the two wives are jointly entitled to 1/8. In this scenario, each one of them will receive 1/16 of the estate.
Who is an inheriting descendant?
The term inheriting descendant was used above when describing the shares of both the husband and the wife but without providing a definition. Actually, the term cannot be fully comprehended until the shares of children and grandchildren are studied. However, we will provide a short explanation here.
An inheriting descendant is any child or grandchild of the deceased who is classified as a primary heir. By simple intuition, immediate children, i.e. sons and daughters, are considered inheriting descendants. However, with grandchildren the concept is not as straight-forward. For now, it is enough to know that the children of a son, i.e. Grandson [son’s son] and granddaughter [son’s daughter] are considered inheriting descendants, while children of a daughter, like Grandsons [daughter’s son] and Granddaughters [daughter’s daughter] are not inheriting descendants.
Based on this, if a deceased wife leaves behind a son, a daughter, a grandson [son’s son] or a granddaughter [son’s daughter], then the husband will receive 1/4. And if a husband has any of the above descendants, the wife will receive 1/8. Note that they do not have to be all present in a scenario. It is only enough to have one of them present in a scenario to result in the lesser share for the husband or wife.
On the other hand, if a deceased husband leaves behind a grandson [daughter’s son] or granddaughter [daughter’s daughter], then the wife’s share will be 1/4 because they are non-inheriting descendants. Using the same argument, if a deceased wife has a grandson [daughter’s son] or a granddaughter [daughter’s daughter], then the husband’s share will be 1/2.
Note on Children from Different Marriages
When inspecting whether a spouse has a child, it does not matter whether this child is from the current marriage, i.e. with the current spouse, or from another spouse.
For example, say Zaid was married to Salma and they conceived Bilal. Later, Salma dies and Zaid marries Hind. If Zaid passes away leaving Hind and Bilal, then Hind is entitled to 1/8 because Bilal is considered an inheriting descendant for Zaid. Being from a current or previous marriage is irrelevant.
Textual Evidence
The shares of husband and wife are outlined in Chapter 4, verse 12 of the Holy Quran, which reads:
You will inherit half of what your wives leave if they have no children. But if they have children, then your share is one fourth of the estate after the fulfilment of bequests and debts. And your wives will inherit one fourth of what you leave if you have no children. But if you have children, then your wives will receive one eighth of your estate after the fulfilment of bequests and debts.
Summary
Heir | Share | Conditions |
Husband | 1/2 | Wife has no inheriting descendant |
1/4 | Wife has an inheriting descendant | |
Wife | 1/4 | Husband has no inheriting descendant |
1/8 | Husband has an inheriting descendant |