Exclusion 3

We covered seven (7) rules of exclusion in the last two posts. Continuing, let's consider a set of heirs in a particular order. I call the set "alpha" and it's made up of:
* Full brother
* Consanguine brother
* Full brother's son
* Consanguine brother's son
* Full paternal uncle
* Half paternal uncle
* Full paternal uncle's son
* Half paternal uncle's son

Now the order of arrangement is VERY important when it comes to exclusion because a member excludes all those below him. For instance, if a full brother is present, every other member is excluded; likewise when a full brother is absent, a consanguine brother if available excludes other members, and so on. Therefore,

Rule 8: Full brother excludes consanguine brother and those below him.

Rule 9: Consanguine brother excludes full brother's son and those below him.

Rule 10: Full brother's son excludes consanguine brother's son and below him.

Rule 11: Consanguine brother's son excludes full paternal uncle and those below him.

Rule 12: Full paternal uncle excludes half paternal uncle and those below him.

Rule 13: Half paternal uncle excludes full paternal uncle's son and his own son.

Rule 14: Full paternal uncle's son excludes half paternal uncle's son.

Note that any heir (outside alpha) that can exclude a full brother automatically excludes all other members of the set.

Rule 15: Son excludes full brother.

Rule 16: Grandson through son excludes full brother.
This is applicable in the absence of a son. Recall that grandson through daughter is a non-heir. Also the rule trickles down to descendants provided they are ALL sons; such that great grandson excludes full brother in the absence of son and grandson.

Rule 17: Father excludes full brother.

Observe the connection between rules 15 and 16. The son of a deceased will exclude the deceased's full brother. In the absence of the son, the grandson will exercise the same power and exclude the full brother. Conversely, father excludes full brother as well (rule 17). Now, if the father is not present, who takes his place? Of course, his father i.e. the deceased's paternal grandfather. But does the grandfather in addition to having a share of the estate also has the authority to exclude full brother? Even the Companions of the Holy Prophet (peace be upon him) differed on this because the ruling is neither clearly stated in the Qur'an nor did such a circumstance arose during the lifetime of the Holy Prophet (peace be upon him) to necessitate a verdict. 

The first opinion is that grandfather excludes full brother because he inherits all the privileges of the father; just like the grandson inherits all rights and privileges of a son. The second view is that grandfather does not have the ability to exclude full brother even though he can "jump" and replace the father to inherit from the deceased. One of the arguments of the proponents of this view (which has been adopted by majority of Jurists like Imams Malik, Shafi'i, Ahmad ibn Hanbal and others) is that father excludes his mother i.e. paternal grandmother (see below) but grandfather cannot exclude her because he (grandfather) does not have the same status as the father. As a result, grandfather cannot exclude full brother as a father does.

IMPORTANT: Full and consanguine brothers are the only ones not excluded by grandfather. It is generally agreed that he excludes other members of alpha. Thus, the above statement that "he who excludes full brother excludes all members of alpha" does not apply here.

Rule 18: Son, grandson, father EACH excludes full and consanguine sisters.
Again, grandfather does not exclude full and consanguine sisters.

Rule 19: Son, grandson, daughter, granddaughter through a son, father, paternal grandfather EACH excludes uterine brothers/sisters.

Rule 20: Mother excludes both grandmothers.

Rule 21: Father excludes paternal grandmother (i.e his own mother) only.

Exclusion 2

In the last post, we discussed two (2) rules of exclusion.
1. A son excludes all grandchildren, and 
2. A daughter does not exclude grandchildren [i.e children of her late bother(s)].

Now let's continue. Supposing an individual 'Z' (either male or female) has a son 'P' and two daughters 'Q' and 'R'. 'P' is married and is blessed with daughters only. Whether 'Q' and 'R' are married with or without children is immaterial because it makes no difference. Their children are non-heirs.
a) 'P' dies before 'Z'. When 'Z' passes on, 'Q' and 'R' will exclude the grandchildren.
b) If 'P' has at least a son; in the same circumstance, 'Q' and 'R' will NOT exclude the grandchildren. However, they (the grandchildren) will not the share of the estate their father ('P') should have gotten. A new sharing formula is created for them. Hence,

Rule 3: Two or more daughters exclude strictly granddaughters. 

Rule 4: Two or more daughters do not exclude grandchildren comprising of at least a son.

This pair of rules has a wide range of application.
1) Inheritance of second and third generation heirs.
The children of the deceased are the first generation heirs, his/her grandchildren are the second generation heirs, while his/her great grandchildren are the third generation heirs. Let's say a deceased 'W' (male or female) has a son 'K' who in turn begets a son 'L' and two daughters 'M' and 'N'. 'L' grew up, got married and is blessed with five (5) daughters. In this case,
'K' = first generation heir of 'W'.
'L', 'M' and 'N' = second generation heirs of 'W'.
Five daughters = third generation heirs of 'W'.

If son 'K' and grandson 'L' pass on before 'W', 'M' and 'N' the surviving second generation heirs will exclude all the 5 daughters because they are all female. Supposing there is at least a son among the third generation heirs, 'M' and 'N' cannot exclude them, rather a new sharing formula is created for them.

This is a straight-forward analogy. We can complicate it a bit. 'W' has three children. A son 'A' and two daughters 'B' and 'C'. 'A' begets 2 sons 'S', 'T' and two daughters 'U', 'V'. 'B' has two sons 'X' and 'Y'. 'C' is blessed with a daughter. 'S' has 4 daughters, 'T' has 2 daughters, 'U' has a son and 2 daughters, 'V' has 2 sons, 'X' has a son and a daughter, 'Y' has 3 sons and 'Z' has a daughter. Confusing? Not really. Taking some moment to sketch the family tree will help.

a) When 'W' dies and the status-quo remains (i.e no one died before him/her), 'A', 'B' and 'C' (the first generation heirs) will inherit from him/her. The second and third generation heirs will all be excluded due to the presence of son 'A'.
b) If 'A' died before 'W', 'B' and 'C' will NOT exclude 'S', 'T', 'U' and 'V' because 'S' and 'T' are sons. Note that 'X', 'Y' and 'Z' are non-heirs (grandchildren through daughters).
c) In a situation whereby all the first generation heirs including 'S' and 'T' are absent, 'U' and 'V' will exclude the daughters of 'S' and 'T' from inheriting from 'W' because only the six (6) of them are rightful heirs. Others are non-heirs.
d) Supposing 'T' has a son in addition to his 2 daughters, in the absence of 'S' and 'T' and the first generation heirs, 'U' and 'V' cannot exclude the seven rightful heirs of the third generation (i.e 4 daughters of 'S' and a son and 2 daughters of 'T'). The seven (7) of them will inherit from 'W'. The presence of 'T's' son will entitle not only his daughters but also all the daughters of 'S' to a share of 'W's' estate.

2) Another application of this pair of rules (though in a modified form) is when full sisters are inheriting along with consanguine sisters. We recall that sisters' children are non-heirs. So the possibilities are as follows:

Rule 5: One full sister does not exclude one or more consanguine sisters.

Rule 6: Two or more full sisters exclude strictly consanguine sisters.

Rule 7: Two or more full sisters do not exclude consanguine sisters if a consanguine brother is among them. 

The slight modification is that both sisters (full and consanguine) are in the same generational level, unlike the previous situations whereby two or more females in one generation will exclude strictly female(s) in a generation lower than theirs. Next post should conclude the discussion on exclusion Insha Allah.

Exclusion

This means preventing a rightful heir from having any share of the deceased's estate due to the PRESENCE of another heir. The principle behind who excludes who is the degree of closeness to the deceased. The closer relatives will exclude those who are not so close. For example, son will exclude grandson. The grandson can only inherit in the absence of the son since a son is closer to the deceased than a grandson. Note that there is a difference between exclusion and impediment discussed in the last post. In exclusion, a "stronger" heir eliminates a "weaker" heir while impediment has to do with preventing a heir from inheriting due to circumstances like murder, difference of religion, slavery, etc.

There are two types of exclusion: total and partial. The definition above refers to total exclusion. Partial exclusion means reducing the share of the estate a heir should have gotten due to the existence of another heir. For instance, a husband inherits half (1/2) of his wife's estate if she has no child, but supposing she has a child even if from a previous husband, he gets one-quarter (1/4) of her estate. This reduction from 1/2 to 1/4 is called partial exclusion and it affects only five (5) persons: husband, wife, mother, daughter and consnguine sister. We shall discuss each one later Insha Allah. Meanwhile, we shall concentrate on total exclusion. So unless otherwise specified, whenever we say "exclusion", we mean "total exclusion".

Now, among the heirs (male and female), there are those I call "basic heirs", because they cannot be excluded irrespective of who is present. They are: son, daughter, father, mother, husband and wife. The worst that can happen to them is to be partially excluded. Exclusion is quite a complex concept. Thus, we will try to simplify it using analogies. Do not mind any repetitions. They are for easier and clearer understanding.

Let's say that an individual 'X' (who may either be a male or female) has two sons 'A' and 'B' who are both married. 'A' has 2 sons and a daughter while 'B' has a son and 3 daughters. This means that 'X' has 7 grandchildren (3 sons, 4 daughters).
a) If 'A' and 'B' are absent (i.e have died), when 'X' eventually passes on, the 7 grandchildren will replace or represent their fathers and inherit from his estate.
b) Supposing 'A' and 'B' are both present at the time 'X' dies, they will exclude their children from having any share of 'X's' inheritance.
c) If at the time 'X' passes on, only 'A' is present, (i.e 'B' has died before 'X'), the 4 children of 'B' cannot take the place of their father to inherit from 'X' due to the presence of 'A'. This means that 'A' will exclude both his children and the children of his brother 'B'. But this rule applies exclusively when 'A' is a SON and not a daughter. Therefore,

Rule 1: A son excludes ALL grandchildren.

Modifying the analogy a bit, if 'A' were to be a daughter and 'B' a son, what happens?
a) Assuming 'A' and 'B' are both absent when 'X' dies, only the 4 children of 'B' will inherit from him. The children of daughter 'A' are non-heirs.
b) If 'A' and 'B' are present at the time 'X' passes on, they will exclude the children of 'B'.
c) On the other hand, if 'B' died before 'X', and 'A' is the only surviving child, she will NOT exclude the children of 'B'. However, this does not mean that 'B's' children will take the place of their father or will be entitled to their father's share of the estate. A new sharing formula is to be created for them [We shall see the details of this sharing formula with numeric examples in subsequent posts Insha Allah. Here we are just interested in discussing who excludes who and in what circumstance(s)]. This brings us to the next rule of exclusion.

Rule 2: A daughter does not exclude grandchildren [i.e children of her late brother(s)].

It will be wise to pause here. Tomorrow is another day.


Non-heirs and impediments to inheritance

Non-heirs are those relatives not entitled to any part of the deceased's estate.They include:

1. Daughter's children (sons and daughters).
They will inherit through their father's (daughter's husband's) line only. Their mother's line is cognate.

2. Sister's children (sons and daughters).
This refers to all the three types of sisters: full, consanguine and uterine. Their children will inherit through their father's line only as the case with daughter's children.

3. Daughters of full or consanguine brother.

4. Daughters of full or consanguine brother's son.

5. Children (sons and daughters) of uterine brother.

6. Daughters of full or half paternal uncle.
A full paternal uncle has same father and same mother with the deceased's father, while half paternal uncle has same father but different mother with the deceased's father. Both are heirs but their daughters are non-heirs.

7. Daughters of full or half paternal uncle's son.

8. Paternal aunt, her children and their descendants. 

9. Maternal uncle, his children and their descendants.

10. Maternal aunt, her children and their descendants.

11. Maternal grandfather's mother.
Given that maternal grandmother (the wife of maternal grandfather) is a heir in the absence of mother, if the maternal grandmother is also absent, who takes her place? Her mother. Not her husband's mother. Therefore, maternal grandfather's mother is a non-heir.

12. Paternal grandmother's father.
As in (10) above, paternal grandmother is also an heir in the absence of mother and in her absence, her mother replaces her, not her father.

Impediment means barring a heir from getting his/her share of the deceased's estate due to certain circumstances. These include:

1. Murder.
An heir who deliberately murders the deceased will neither inherit from the latter's estate nor from the diyya. If the murder is accidental, he/she will inherit from the deceased's estate but not from the diyya.

2. Difference of religion.
A Muslim does not inherit from a non-Muslim relative no-matter how close they are and vice-versa. For instance, a Muslim father who has a non-Muslim son will not inherit from him and vice-versa.

3. Simultaneous death.
When two or more people who are rightful heirs of one another like father and son, husband and wife, etc die at the same time maybe under a collapsed building or in similar circumstance, and it is uncertain who died first, they will not inherit from each other. But assuming its clear that the husband died before the wife for instance, she will be listed among the surviving heirs f the husband and given her share of the inheritance. Thereafter, her heirs will then inherit her estate PLUS her share of the husband's estate.

4. Li'an (Cursing for adultery).
This happens when a man denies the paternity of his wife's pregnancy and they end up swearing and cursing themselves as prescribed by Allah in the Qur'an (24: 6 - 9). "And for those who accuse their wives, but have no witnesses except themselves, let the testimony of one of them be four testimonies (i.e. testifies four times) by Allah that he is one of those who speak the truth. And the fifth (testimony) (should be) the invoking of the Curse of Allah on him if he be of those who tell a lie (against her). But it shall avert the punishment (of stoning to death) from her, if she bears witness four times by Allah, that he (her husband) is telling a lie. And the fifth (testimony) should be that the Wrath of Allah be upon her if he (her husband) speaks the truth."

After Li'an, the marriage is dissolved. The implication is that the man and the child that results from such pregnancy will not inherit from one another. But the mother will inherit from the child and vice-versa.

5. Slavery.
A slave and everything he owns belongs to his master. As far as he remains a slave (whether full or partial), he will not inherit from his relatives and they will not inherit from him. The logic is that if he inherits, whatever he gets belongs to his master and if his relatives are to inherit from him, they will actually be inheriting part of the master's estate.

6. "Emergency marriage".
A man who marries a woman during his last illness (and dies) she will not inherit from him, nor will he inherit from her (supposing she incidentally dies before him). 

 

Female heirs

Female heirs are seven (7):

1. Daughter.
A daughter will inherit from her father and mother. This provision does not extend to her children. That is to say, her children cannot replace or represent her to inherit from their (maternal) grandfather or (maternal) grandmother in her absence.

2. Son's daughter.
If a son has a daughter, she will inherit from the son's father or mother (her paternal grandparents) in the absence of the son. The rule also applies to son's son's daughter, son's son's son's daughter, and so on. This has been explained in the last post under '"grandson or his descendants".

3. Mother.
When a son or daughter passes on, his/her mother is entitled to a part of his/her estate. She cannot be excluded no-matter what happens.

4. Either grandmother.
In the absence of the mother, both grandmothers i.e maternal and paternal will inherit from a deceased. Here, the "ascendant rule" applies, such that if one or both grandmothers is/are absent, the great-grandmothers will take their place and inherit from the deceased.

5. Sister.
There are three (3) types of sisters: full, consanguine and uterine i.e having same father same mother, same father different mother and same mother different father respectively. In subsequent posts, we shall examine the circumstances in which each of them will be entitled to a share of the deceased's estate. Note that sister's children (sons and daughters or their descendants) are non-heirs.

6. Wife.
A wife will inherit from her late husband no-matter what happens. She cannot be excluded. She will also inherit from him if he dies after divorcing her with one or two pronouncements (revocable divorce) provided her Iddah has NOT elapsed. But if the divorce is irrevocable (three pronouncements), she will not inherit from his whether her Iddah has elapsed or not. Now, if the husband is "insensitive" and divorces his wife irrevocably DURING his final illness in which he dies, the four schools of Islamic jurisprudence have divergent opinions:
a) As-Sahafi'i - She will NOT inherit from him whether or not the Iddah has expired.
b) Abu-Hanifa - If the Iddah has not expired, she will inherit from him, otherwise, she will become a non-heir.
c) Ahmad bn Hanbal - She has the right to inherit from him whether the Iddah has expired or not provided she has not married another person.
d) Malik - She will inherit from him even if the Iddah has expired or she has married another person.

7. Patroness.
A woman who sets a slave free will inherit from him/her so long as he/she has no heir.


Male heirs

Male heirs of a deceased are ten (10):

1. Son.
This refers to legitimate male child. Note that a man can only have a legitimate child after contracting a legally acceptable marriage with a woman outside his prohibited degree; while a woman can have a legitimate child with or without a formal marriage contract. In other words, if a man and woman fornicates, (Allah forbids), and a child is born as a result, whether or not they get married afterwards, the man is the biological father but NOT the legal father of the child but the woman is both the biological and legal mother. Hence such a child will inherit from his mother ONLY and vice-versa. This ruling also applies to adopted children. They will not inherit from their adopted parents and vice-versa.

2. Grandson or his descendant.
Everyone has two categories of relatives: agnates and cognates. Agnates are relatives whose connection is traceable through the father or male line such as paternal grandparents, paternal uncle, paternal aunt, etc., while cognates are relatives whose connection is traceable through the mother or the female line like maternal grandparents, maternal uncle, maternal aunt and so on. Now, only agnates are eligible to inherit the estate of a deceased; meaning that all cognates are not bona-fide heirs except uterine brothers/sisters and maternal grandmother to whom the Qur'an assigns a share (more on this later).

Therefore, the grandson referred to here as a male heir is the one through a son. The grandson through a daughter is a non-heir. For example, 'A' (who may either be a male or female) has a son 'B', who also begets a son 'C'. When 'A' dies, his/her son 'B' inherits from him/her as the case in (1) above. 'C' is excluded. We shall discuss 'exclusion' in a subsequent post Insha Allah. In the case whereby 'B' is absent at the time 'A' dies; meaning that 'B' died before 'A', then 'C' the grandson will represent or stand in place of 'B' and inherit from 'A'. I call this phenomenon "jumping".  

Assuming 'C' has a son 'D' who also has a son 'E', 'E' will inherit from 'A' if and only if 'B', 'C' and 'D' are absent. That is what is meant by '"his descendants", i.e the descendants of grandson 'C'. Put in another way, a grandson will inherit from his grandfather if his father is absent. Likewise, a great-grandson will inherit from his great-grandfather if his father and grandfather are absent. Now, very important. The rule explained above applies to ONLY sons. That is, 'A' (may be of any gender) but 'B', 'C', 'D', 'E' ... must all be males.

If 'C' were to be a female and she marries 'X' who has a father 'Y' and grandfather 'Z', and the marriage is blessed with a son 'D'; when 'A' dies, 'C' will inherit from him/her if 'B' is absent. But 'D' CANNOT inherit from 'A' even if 'B' and 'C' are absent because 'A' and 'B' are his cognates. 'D' is only entitled to inherit from his parents 'X' and 'C', paternal grandfather 'Y' (in the absence of 'X') and paternal great-grandfather 'Z' (in the absence of both 'X' and 'Y').

In summary, the grandson entitled to inheritance is son's son, not daughter's son. Also the descendants of son's son ('D' and 'E' as in the first example above) will "jump" and inherit from 'A' provided 'B' and 'C' are absent. This trend of "jumping" will continue down the line as far as a female does not appear. If a female emerges, she will also "jump" but her children (male and female) will not because to them, the line is cognate.

3. Father.
This is straight forward. A father shall inherit from his son or daughter.

4. Paternal grandfather or his ascendant.
By now its clear that maternal grandfather is a non-heir. So, a paternal grandfather will inherit from his grandson or granddaughter in the absence of his son. Using the illustration above, given that 'A', 'B', 'C' and 'D' are all males and 'E' is either male or female; when 'E' passes on, 'D' (his or her father) will inherit from him or her as the case in (3) above. In the absence of 'D', 'C' (the paternal grandfather) will inherit from 'E'. The same ruling applies to ascendants 'B' and 'A'.

5. Brother.
There are three (3) types of brothers:
a) Full brother - having same father and same mother.
b) Consanguine brother - having same father but different mother.
c) Uterine brother - having same mother but different father.
The circumstances in which each of them will have a share of the deceased's estate or be excluded will be explained in subsequent posts Insha Allah. Here, we are just interested in listing the male heirs.

6. Full or consanguine brother's son or his descendant.
As earlier explained, descendant refers to sons only who have the privilege of "jumping" when their parents are absent. Full or consanguine brother's daughter is a non-heir. Likewise son and daughter of uterine brother is a non-heir.

7. Paternal uncle.
Father's elder or younger brother from the same mother (full paternal uncle) and father's elder or younger brother from a different mother (half paternal uncle) are both heirs. Maternal uncle is a cognate and non-heir. 

8. Paternal uncle's son or his descendant.

9. Husband.
A husband will inherit from his wife if she dies before him. Likewise, if a man divorces his wife with one or two pronouncements (i.e revocable divorce) and she dies WHILE in her Iddah, he will inherit from her because technically, she remains his wife. However, if the divorce is irrevocable (three pronouncements), he will NOT inherit from her whether the Iddah has expired or not.

10. Patron.
One who sets a slave free. He will inherit from the slave if the later has no heirs.