How to distribute the shares of inheritance in the case of the *musharaka*
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Question:
This is a question from the listener Ramadan Muhammad Abu Khutah, an Egyptian residing in the Kingdom. He says: My mother married a man before my father and bore two daughters from him. Then she married my father and bore me and a sister. My father passed away, leaving behind nine *faddan* of agricultural land. I inherited six of them, and my sister inherited three. Then my sister passed away after getting married, leaving no descendants. So I, her husband, and her maternal siblings went to the judge regarding her estate. However, the judge gave her husband half of her estate and gave her maternal siblings the other half. I am her full brother, and he did not give me anything from it. What is your opinion of this action? Do I deserve anything from her estate or not?
Answer:
If the reality is as you described.
The presenter: Yes?
The Shaykh: That is: if the reality is as the questioner described, then this mufti or this judge has erred; because the husband gets half, and her maternal siblings get one-third, leaving one out of six for her full brother as a residuary heir, unless her mother is alive. If her mother is alive, she is given one-sixth, and her maternal sisters get one-third, and her husband gets half. This is called the *musharaka*, also called the *Yamiyyah*, and also called the *Himariyyah*. It is a well-known case among scholars. The correct view is that the full brother is excluded in this questioner's case if there is a mother along with the maternal sisters. The husband is given half of six, which is three. The mother is given one-sixth, which is one, and the siblings block her from the one-third. The maternal sisters are given one-third. Nothing remains; the six are exhausted by the fixed shares, so the full brother is excluded according to the correct opinion of the scholars. This is the school of Abu Hanifah (may Allah have mercy on him) and the school of Imam Ahmad (may Allah have mercy on him). It is also narrated from a group of the Companions, including Ibn Abbas, Abu Musa al-Ash'ari, and Abu ibn Ka'b, and a group of the Companions and people of knowledge. This is the correct view; based on the saying of the Prophet (peace and blessings be upon him):Sahih Muslim 1615a.
Perhaps this is the reality; because the questioner did not mention the mother, nor did he mention that the mother died. If the mother is alive, then what the judge did is correct and is the truth, contrary to the schools of al-Shafi'i and Malik. The husband gets half of six: three. The mother gets one-sixth: one. The deceased woman's maternal sisters get one-third. That makes six. Nothing remains. So the full brother is excluded, even if he is a strong residuary heir, but the fixed shares exhausted the estate so nothing remained for him. The Messenger (peace and blessings be upon him) said: And in another wording: Sahih Muslim 1615a And the closest man is the full brother, and since nothing remained for him, he is excluded.
The point is: the judge's ruling is correct if the mother is alive, but if the mother is absent, he is in error.
The presenter: The judge did not calculate anything for the mother.
The Shaykh: If the judge wants to give the husband half and the maternal siblings one-third, one remains for the full brother, if she has no mother. But I fear that the questioner forgot the mother. I fear that the questioner forgot the mother, and the judge was wrong. Yes.
The presenter: I mean, if the mother is alive, does she get one-sixth?
The Shaykh: She gets one-sixth.
The presenter: And the rest for the maternal siblings?
The Shaykh: One-third. They get one-third, a fixed share, and nothing remains. It is finished.
The presenter: And nothing remains.
The Shaykh: Yes, so the full brother is excluded according to the correct opinion of the scholars.
The presenter: What if it becomes clear that the mother is actually not present?
The Shaykh: Then he gets one-sixth as a residuary heir.
The presenter: The remainder as a residuary heir?
The Shaykh: As a residuary heir, it is not a fixed share, it is a residuary share, meaning: one out of six. Yes.
The presenter: May Allah reward you.
This is a question from the listener Ramadan Muhammad Abu Khutah, an Egyptian residing in the Kingdom. He says: My mother married a man before my father and bore two daughters from him. Then she married my father and bore me and a sister. My father passed away, leaving behind nine *faddan* of agricultural land. I inherited six of them, and my sister inherited three. Then my sister passed away after getting married, leaving no descendants. So I, her husband, and her maternal siblings went to the judge regarding her estate. However, the judge gave her husband half of her estate and gave her maternal siblings the other half. I am her full brother, and he did not give me anything from it. What is your opinion of this action? Do I deserve anything from her estate or not?
Answer:
If the reality is as you described.
The presenter: Yes?
The Shaykh: That is: if the reality is as the questioner described, then this mufti or this judge has erred; because the husband gets half, and her maternal siblings get one-third, leaving one out of six for her full brother as a residuary heir, unless her mother is alive. If her mother is alive, she is given one-sixth, and her maternal sisters get one-third, and her husband gets half. This is called the *musharaka*, also called the *Yamiyyah*, and also called the *Himariyyah*. It is a well-known case among scholars. The correct view is that the full brother is excluded in this questioner's case if there is a mother along with the maternal sisters. The husband is given half of six, which is three. The mother is given one-sixth, which is one, and the siblings block her from the one-third. The maternal sisters are given one-third. Nothing remains; the six are exhausted by the fixed shares, so the full brother is excluded according to the correct opinion of the scholars. This is the school of Abu Hanifah (may Allah have mercy on him) and the school of Imam Ahmad (may Allah have mercy on him). It is also narrated from a group of the Companions, including Ibn Abbas, Abu Musa al-Ash'ari, and Abu ibn Ka'b, and a group of the Companions and people of knowledge. This is the correct view; based on the saying of the Prophet (peace and blessings be upon him):
Give the shares to those who are entitled to them, and what remains over goes to the nearest male heir.
ألحقوا الفرائض بأهلها، فما بقي فهو لأولى رجل ذكرPerhaps this is the reality; because the questioner did not mention the mother, nor did he mention that the mother died. If the mother is alive, then what the judge did is correct and is the truth, contrary to the schools of al-Shafi'i and Malik. The husband gets half of six: three. The mother gets one-sixth: one. The deceased woman's maternal sisters get one-third. That makes six. Nothing remains. So the full brother is excluded, even if he is a strong residuary heir, but the fixed shares exhausted the estate so nothing remained for him. The Messenger (peace and blessings be upon him) said:
Distribute the inheritance among the people of fixed shares according to the Book of Allah. Whatever the fixed shares leave over is for the closest male relative.
اقسموا الميراث بين أهل الفرائض على كتاب الله، فما أبقت الفرائض فهو لأولى رجل ذكرGive the shares to those who are entitled to them, and what remains over goes to the nearest male heir.
ألحقوا الفرائض بأهلها، فما بقي فهو لأولى رجل ذكرThe point is: the judge's ruling is correct if the mother is alive, but if the mother is absent, he is in error.
The presenter: The judge did not calculate anything for the mother.
The Shaykh: If the judge wants to give the husband half and the maternal siblings one-third, one remains for the full brother, if she has no mother. But I fear that the questioner forgot the mother. I fear that the questioner forgot the mother, and the judge was wrong. Yes.
The presenter: I mean, if the mother is alive, does she get one-sixth?
The Shaykh: She gets one-sixth.
The presenter: And the rest for the maternal siblings?
The Shaykh: One-third. They get one-third, a fixed share, and nothing remains. It is finished.
The presenter: And nothing remains.
The Shaykh: Yes, so the full brother is excluded according to the correct opinion of the scholars.
The presenter: What if it becomes clear that the mother is actually not present?
The Shaykh: Then he gets one-sixth as a residuary heir.
The presenter: The remainder as a residuary heir?
The Shaykh: As a residuary heir, it is not a fixed share, it is a residuary share, meaning: one out of six. Yes.
The presenter: May Allah reward you.
Source
binbaz.org.sa
The Arabic text is copied verbatim from the original source, without any edits.