Can Property Be Divided Among Heirs Before Death?

Answered by Shaykh Dr. Muhammad Fayez Awad

Question

Is it permissible for a father to divide his inheritance during his lifetime to avoid disputes after his death?

Answer

In the name of Allah, the Most Gracious, the Most Merciful.

All praise is due to Allah, Lord of all worlds. Peace and blessings be upon the Messenger sent as a mercy to the worlds, our Master and Prophet, Muhammad, and his Family and Companions.

Inheritance and Gift

A person’s wealth does not become an inheritance until after their death is confirmed. At that point, the wealth must be divided according to the rules of inheritance in Islamic law.

In the case mentioned, where a father divides his wealth among his children before his death, this is considered a gift (hiba), not an inheritance, since the owner of the wealth is still alive.

The basic principle regarding a parent’s gift to their children during their lifetime is that it should be given equally, without any favoritism unless there is a valid religious reason for doing otherwise. This equality is more likely to maintain love and harmony between the parents and children, and among the children themselves. It also prevents envy and resentment, which favoritism can create, and ensures that the parents remain free from wrongdoing in the sight of Allah (Most High).

Justice

Islamic teachings prohibit favoring some children over others in gifts without a legitimate reason. This is based on the hadith narrated by Nu‘man Ibn Bashir (Allah be pleased with him):

“The mother of Nu‘man Bint Rawaha asked his father to give a gift from his wealth to their son. He delayed for a year, then agreed. She said:

‘I will not be satisfied until you make the Messenger of Allah (Allah bless him and give him peace) a witness to what you have given to my son.’

So my father took me by the hand—I was a young boy at that time—and went to
the Messenger of Allah (Allah bless him and give him peace). He said: ‘O Messenger of Allah, the mother of this boy, Bint Rawaha, liked me to make you a witness to what I have given to her son.’ The Messenger of Allah (Allah bless him and give him peace) said:

‘O Bashir! Do you have any other children besides this one?’ He replied: ‘Yes.’ The Prophet said: ‘Did you give all of them a gift like this?’ He replied: ‘No.’ The Prophet said: ‘Then do not make me a witness, for I do not bear witness to injustice.’” [Bukhari; Muslim]

Equality in Gifts

Scholars have differed regarding the obligation of equality in gifts among children:

The Hanafis, Malikis, and Shafi‘is [See: Ibn ‘Abidin, Radd al-Muhtar; Kalbi, al-Qawanin al-Fiqhiyya; Shirbini, Mughni al-Muhtaj] held that equality in gifts among children is recommended (mustahabb), but not obligatory.

The Hanbalis[See: Ibn Qudama, al-Mughni], along with Abu Yusuf from the Hanafis and a narration from Imam Malik (Allah have mercy on them), held that it is obligatory to treat the children equally in gifts. If someone favors some of their children with a gift or prefers one over the others without a valid reason, they have committed a sin and are required to rectify the situation in one of two ways: either by returning what was given in excess or by completing the shares of the others.

Regarding whether equality between children means giving the male the same as the female or giving the male twice the share of the female:

• The majority of scholars held that equality means giving both male and female children the same amount, as the hadiths on the matter do not distinguish between males and females. [See: Ibn ‘Abidin, Radd al-Muhtar; Kalbi, al-Qawanin al-Fiqhiyya; Shirbini, Mughni al-Muhtaj; San‘ani, al-Insaf]
• The Hanbalis, Imam Muhammad Ibn al-Hasan from the Hanafis, and a minority opinion within the Shafi‘i school argued that gifts to children should be distributed according to the inheritance shares (i.e., the male should receive twice the amount of the female), as this is how Allah (Most High) has divided inheritance, and He is the best of judges. This, they argue, is the just distribution for gifts among children. [See: Ibn Qudama, al-Mughni]

Summary

In conclusion, it is preferable in such situations to follow Islamic guidelines and not divide the wealth during one’s lifetime. Instead, one should adhere to the rules of inheritance as prescribed by Islamic law, for therein lies goodness and success.

May Allah grant us the ability to act according to His laws and remain steadfast upon them. And all praise is due to Allah, Lord of all the worlds.

For more detailed information on this topic, refer to the “al-Mawsua‘ al-Kuwaytiyya al-Fiqhiyya.”

[Shaykh] Dr. Muhammad Fayez Awad