Estate Division and the Sunna of Equal Treatment of Children in Gift Giving

Hanafi Fiqh

Answered by Sidi Faraz A. Khan

Question: Assalam Alaikum warahmatulla
One of my friend’s Dad is considering passing down his properties that he bought over his lifetime.  He has 3 sons and 1 daughter.

He has 4 houses, including the one he lives in.  He planned to just give one each to each sibling, but the question is who gets which one?  Some are very expensive and in good locations, and others are not.

What is a fair way to handle this?  Should he sell them and give the profits (two houses hold family memories, some of the are attached to them) or make them joint owners, what is the sharan answer (hanafi) – or is it ok to give what he wants to whoever – does he have to be fair?

JazakumAllah Khair

Answer: Assalamu alaikum wa rahmatullah,

I pray this finds you in the best of health and faith.

If the father intends on making a bequest for the children in his will for a certain portion of the estate to be divided after death, then that would not be allowed unless all the heirs agreed to it after his demise. [Maydani, Lubab fi Sharh al-Kitab]

If the father plans on dividing the estate while alive, as gifts to the children, then the answer is based on the issue of equality to children in gifts.

Equality in Gifts to Children

According to the Hanafi school of law, the father should divide gifts equally among all children, both sons and daughters. In general, it is disliked to prefer some children over others in gifts, as that leads to mutual discord, while equality in gifts leads to harmony and increased love. [Ibn Nujaym, Bahr al-Raiq; Sarakhsi, Mabsut; Kasani, Bada’i al-Sana’i]

This is based on the general Qur’anic prescription of fairness, justice, and good treatment, such as in the verse, “Verily, Allah commands to justice, doing good, and giving to kinsfolk” [16:90].

This virtue is reinforced by the Noble Prophetic Sunna, as indicated in various hadiths. It is narrated that the Beloved Messenger [peace and blessings be upon him] stated, “Be fair and just among your children,” and in some narrations with the addition “with respects to gifts” [Sahih Bukhari].

It is also narrated by the Companion Nu’man ibn Bashir that his father took him to the Prophet [peace and blessings be upon him] and said that he had gifted his son [Nu’man] a gift, to which the Prophet replied, “Did you give the like of it to all your children?” The father said, “No,” to which the Prophet replied, “Then take it back,” and in another narration, “Then fear Allah and be fair with respect to your children,” after which the father took the gift back. [Bukhari, Muslim]

An Exception to This Ruling

An exception, however, is if there is a legitimate reason to give financial preference to one child, whether son or daughter, in which case doing so is not disliked. Some examples are if a particular child has a greater financial need, a medical condition, or more dependents. [Laknawi, Ta’liq Mumajjad Sharh Muwatta’ Muhammad; Ibn Nujaym, Bahr al-Raiq]

There are several examples of Companions preferring certain children over others with gifts, which are understood to be due to particular legitimate reasons. Abu Bakr preferred his daughter Aisha with certain gifts, Umar ibn al-Khattab did the same with his son ‘Asim, and Abdur Rahman ibn Awf with the son of Umm Kulthum, may Allah be well-pleased with them all. [Qari, Mirqat al-Mafatih Sharh Mishkat al-Masabih]

Summary

To summarize then, with respect to your question, the father should follow the Sunna of equal treatment of children, particularly with regards to financial issues such as gifts. He should come up with the most ideal way to divide the homes equally among the children, in a way that leads to increased love and harmony in the family. However, an exception would be if he had a legitimate reason to prefer one or some children over others, in which case doing so would not be disliked. Without a legitimate reason, however, unequal apportionment of gifts could be sinful, such as if he intended harm to any of his children.

Lastly, it would be best for the father in question to consult a pious scholar and seek counsel before dividing up the estate.

And Allah alone gives success.

wassalam
Faraz A. Khan

Checked & Approved by Faraz Rabbani