Inheritance Laws: Can I Stipulate Other Than the Determined Amounts Mentioned in the Qur’an?

Hanafi Fiqh

Answered by Ustadh Faraz A. Khan

Question: According to the sharia, an estate should be transferred in between kids as 1/3 to the girl and 2/3 to a boy. Will it be ok if one decides to do 1/2 and 1/2  between the boy and girl, especially if the kids are not married?

Answer: Assalamu ‘alaykum warahmatullah,

I pray this reaches you in the best of health and states.

This is an excellent question. To fully understand its legal ruling, one must appreciate the nature and importance of inheritance law as a whole.

Inheritance Law: Linguistics

The word in Arabic most often used for this branch of jurisprudence is fara’id, sing. farida, which is derived from a root word that has three primary meanings:

(1) “to decree,” (taqdir), since the shares that are designated for various relatives are decreed by Allah Most High and are therefore fixed;

(2)”to be decisive,” (qat`), since the percentages are listed in the Qur’an itself and hence the proof for them is decisive and unequivocal;

(3) “to expound or clarify” (bayan), since they are delineated in full clarity and as such need no interpretation or elucidation from the Prophetic practice. This is opposed to the ritual prayer (salat), for example, the command of which is general in the Qur’an but the details of which are then elucidated by the Prophetic sunna. [Mawsili, Ikhtiyar]

Allah Most High Himself uses this term (farida) in the Qur’an to refer to inheritance rulings (4:11), and ends the verse with “Verily, Allah is All-Knowing, Ever-Wise.” These two divine attributes are essential to keep in mind when considering the fixed percentages of inheritance, since His decree of those percentages is undoubtedly based on His preeternal knowledge of human nature and society, and undoubtedly a reflection of His transcendent wisdom, which we are utterly incapable of comprehending. [Tafsir Jalalayn, Abu Suud, Nasafi]

The Legal Ruling

Based on the above discussion, one can appreciate that Islamic law does not allow for changes to these determined percentages. The one exception to this ruling would be if the deceased had made a bequest for an heir of a certain amount of money, which would be valid only if the rest of the heirs, that are adults, approved of it after his/her death. If some of them approved and not others, then it would be valid only with respect to the heirs that approved, based on their relative portions. Finally, a child’s approval would not be given any consideration. [Maydani, al-Lubab fi Sharh al-Kitab]

And Allah alone gives success.

Faraz A. Khan

Checked & Approved by Faraz Rabbani

Faraz A. Khan has lived in Amman, Jordan, for several years studying and teaching traditional Islamic sciences, with a focus on Hanafi jurisprudence, hadith studies, theology, logic, and Arabic grammar. He translated and annotated the classical Hanafi primer “Ascent to Felicity” (Maraqi ‘l-Sa`adat) by Imam Shurunbulali, recently published by White Thread Press.