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In the name of Allah, the Most Gracious, the Most Merciful
Distributing an Estate Between Heirs During One's Lifetime
قسمة الميراث على الورثة في حياة المورث

د . أحمد بن عبد الكريم نجيب
Dr.Ahmad Najeeb

The Question:
The people in my country are accustomed to depriving female inheritors from their due rights in an estate. I am afraid that my daughters may be deprived of their right to inherit from my estate after my death. Is it legally permissible for me to divide my property between my would-be heirs in accordance with the rulings of Islamic Sharî`ah before I die so as to relieve my conscience and to assure the rights of my female heirs?

Answer:
Seeking the Help of Allah, Exalted be He, I say:
Allah the All-Wise has decreed that the estate should be divided after the death of the person who is to be inherited, not in his lifetime. If there were no proof for that other than calling the property left behind an ‘estate’ and ‘inheritance’, it would be sufficient to prove that the time determined by Islamic Sharî`ah for it is after the death of the person.

Some Imams and scholars have issued fatwas (religious verdicts) stating that it is permissible to accelerate the distribution of one's property between the would-be heirs in one's lifetime. They have deemed it permissible in accordance with what has been decreed by Allah, Exalted be He; yet this contradicts the opinion of the majority of scholars, or at least the preponderant opinion.

However, if it is feared that some people may deviate from the judgment of Allah the Almighty by depriving female heirs of their due rights, then there is a need to incline to the other opinion even though it contradicts that of the majority. This is in accordance with the jurisprudential rule that states: If two evils contradict each other, then the lesser of them should be done to avoid the greater of them. Therefore, we could say that the evil of the female heirs losing their rights in inheritance is greater than the evil of accelerating the distribution of the estate while giving each one his due. Imam Ahmad Ibn Hanbal, the Imam of the people of the Sunnah (may Allah have mercy on him), maintained that it is permissible to divide one's property according to the rules of inheritance, between the would-be heirs during one's lifetime. This opinion was chosen by some of the late scholars of the Hanbalî Madhhab (school of jurisprudence). Ibn Qudâmah Al-Maqdisî (may Allah have mercy on him) said in his book Al-Mughnî: "Ahmad said, 'I do not prefer dividing property during one's lifetime; rather, the person should let his estate be divided after his death in accordance with the laws of inheritance laid down by Allah, the Almighty. Another baby may be born to this person; so if he divides his property between his would-be heirs, he will have to redistribute his wealth between them. This means he will have to redistribute the whole property or part of what he has given to his heirs so as to be equal between this new baby and the other inheritors. However, if this baby was born after the death of his father, he has no right to share what was given to the other inheritors, since what was given to them has become their own property after the death of the father.'" [5/394.]

Moreover, in his book Al-Furû`, Muhammad Ibn Muflih Al-Maqdisî Al-Hanbalî (may Allah have mercy on him) says, "It is not detestable that one divides his property between his children while still alive; this opinion is maintained by many scholars…Ahmad said, 'For me it is wondrous that one would be able to be equal between his children in such a case." [4/488]

In addition, in his book, Dalîl At-Tâlib, Mar`î Ibn Yusuf Al-Hanbalî says, "It is permissible for a person to divide his property between his would-be heirs during his lifetime, and he is obligated to give any new baby his/her due share. It is obligatory for him to divide his property equally between the inheritors according to their due share in the inheritance." [1/179]

Furthermore, in his book Kifâyat At-Tâlib, Abul-Hasan Al-Mâlikî says, "It is detestable for a person to divide his wealth equally between his male and female inheritors. However, it is permissible to divide his property between his inheritors according to their due shares in the inheritance.”

On the basis of the statements of these scholars, I maintain that it is permissible for a person to divide his property between his would-be inheritors during his lifetime. This is so, especially if he fears that some of the inheritors may be oppressed if the division of the estate is delayed until after his death.

However, a Muslim should endeavor to be certain about his state of affairs in order to absolve his belief and conscience from oppression; he should not divide his property between the would-be heirs as long as he is healthy and able to beget children. This is necessary so as to ensure that he will not beget a baby after he loses all the wealth he owned by dividing it between the rest of his inheritors. However, if he happened to have a baby after dividing his property, he is obligated to re-divide it so as to give the new baby his due share. He should do so in order not to meet Allah the Almighty while burdened with the right that he owed this baby.

Allah knows best and He is All-Wise. My success is only through Allah the Almighty. Upon Him I have relied, and to Him I return.