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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.
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