Islamic Inheritance for Su-Shis
Despite significant theological and practical differences, families with both Shia and Sunni members may not have challenges greater than any other families. The difference in Islamic inheritance, however, is often significant and can have lasting negative consequences.
Islamic inheritance, other than the fact that it is fard or obligatory for Muslims, tends to strengthen families at a time when they are the most vulnerable: when someone beloved passes away. In American society, as well as communities around the world, inheritance is a major vulnerability to family unity and cohesion. Problems of some sort are practically universal for families with wealth. Muslims who do it right and follow the Sharia will typically have healthier families as a result.
Since Shias and Sunnis often intermarry, and it is somewhat common to see siblings and children in the same families identifying as either Sunni or Shia, how do we follow inheritance rules and do it right?
One obvious solution is that you go by the rules of whoever the descendent was. So if the person who is writing his will is Shia, do it the Shia way, and if the individual is Sunni, do it the Sunni way. This solution may seem okay, but it may also cause unintended problems as I will explain. I will also attempt to offer a solution.
What do we mean by Shia?
The term Shia is broad to the point of not being analytically useful in itself. The word “Shia” is often, perhaps unfairly, shorthand for Ithna Ashari (Twelver) Shi’ism, which represents the majority of Shias around the world. There are non-Ithna Ashari groups that use the “Shia” label and have different inheritance rules, and some Muslims who identify as Shia may practice Islam without any readily noticeable differences from Sunnis. So the term I will use to describe the differences and how we will try to bridge them is Ithna Ashari rather than Shia.
What are the differences between Sunni and Ithna Ashari inheritance?
Islamic inheritance rules are in all instances derived primarily from the Quran. Shares are ordained to your children for example, not because you love them or because they married the right person, but because Allah has ordained it. Getting this right matters since we don’t want to do an injustice to anyone, least of all those we love. As most Muslims are aware, there are different historical methodologies for determining Islamic law, known as madhahib or schools of thought.
Among the majority of Sunnis in the United States, schools of thought on inheritance will almost never matter since most families who care to plan ahead have relatives on the same page as them. As a practical matter, after helping hundreds of families, I cannot recall a single instance where a client instructed me to follow a particular Sunni madhab. There are philosophical underpinnings that are consistent throughout the Sunni view that are different from the Ithna Ashari perspective.
The Ithna Ashari rules of inheritance also rely on the Quran, so familiar rules such as daughters getting half the share of sons are still present at the outset. However, the Ithna Ashari system tends to be simpler and allows for greater flexibility than the Sunni system.
The Ithna Ashari system of inheritance has three distinct tiers of heirs. If someone has one or more children of any gender and living parents, who are in the first tier, we don’t look for any other non-spouse heirs. If none of these exist, you go to siblings and others who would be in the second tier. The spouse sits outside the tier system and will take her Quranic share, which is typically ⅛ or ¼ depending on if there are children.
The spouse gets treated about the same in the Sunni and Ithna Ashari system, with an important distinction in Ithna Ashari inheritance of holding two classes of wives – traditional “nikah” wives and “muta” (temporary marriage arrangements) wives. Traditional “nikah” wives are virtually identical to the Sunni system, though “muta” wives have no right to inheritance unless it is in the “muta” contract. Sunnis do not permit “muta” at all.
In Sunni inheritance, there may be a need to look further than the Ithna Ashari tier system because Sunnis have “agnatic” heirs. An agnate is often a son or a father, but there can be female agnatic heirs, as I show in my example below. This can sometimes greatly expand the number of people who may be beneficiaries compared to the Ithna Ashari system. There is also a different understanding of who the heirs are that get their inheritance from the Quran.
There is an underlying philosophical difference between the Sunni and Ithna Ashari systems. Under the Sunni view, the inheritance rules represent a reform of the pre-Islamic Arab system of inheritance. The early generations of Muslims demonstrated this in their practice. In the Ithna Ashari view, Islam and the inheritance rules are a complete replacement of all previous norms from Arab society. An example of how this would matter in practice is in order:
Say Hafsa dies and leaves two daughters, Safiyyah and Rabia, and a sister, Bilquis. In all Sunni schools of thought, 2/3rds share gets divided between the two daughters, consistent with the Quran, and Bilquis will get the remaining ⅓.
In the Ithna Ashari rules of inheritance, you will get a different result. Safiyyah and Rabia will take everything between them. Bilquis receives nothing.
Another significant difference between the two systems is the wasiyyah. In both Sunni and Ithna Ashari inheritance rules, you can give up to ⅓ of your estate for a beneficial purpose. However, the wasiyyah is more restricted for Sunnis, it is not for those already entitled to an inheritance in Islam. So the shares of rightful heirs, relative to each other, represents both a minimum and a maximum. There is a well-known hadith stating that an heir cannot benefit from the wasiyyah. Muhammad ﷺ is reported to have said:
Allah has appointed for everyone who has a right what is due to him, and no bequest must be made to an heir.” (Abu Dawud and others)
This rule is universal among Sunnis. However, with Ithna Asharis, this restriction does not exist. An obvious consequence of this difference is that a daughter can get wasiyyah in the Ithna Ashari arrangement, which would then change what heirs receive relative to each other. The daughter can get about the same as a son. It can also be used to favor some heirs over others.
The significance of Khums and Inheritance
While these rules can be vastly different from each other, one crucial Ithna Ashari concept is khums. Khums is a tax in addition to Zakat where ⅕ of excess earnings (and there are detailed rules concerning this beyond the scope of this post) is paid to a Syed. While the word khums is mentioned in the Quran, there is no Sunni analog to Ithna Ashari Khums. The reason khums comes up in this discussion is its treatment of inheritance.
In the example above, say Hafsa is Sunni and her sister Bilquis is Ithna Ashari. Bilquis had no right to that inheritance if we apply Ithna Ashari rules, but she received an inheritance because her sister was observing Sunni rules. Under Ithna Ashari rules, she does not need to give her share to Safiyyah and Rabia. She can keep it and pay her 20% khums.
Hafsa should not exclude her sister from inheritance just because her sister is Shia. Hafsa is Sunni, and she must make sure inheritance is distributed to her heir, even though her sister’s fiqh is completely fine with her not receiving an inheritance. Bilquis, who is Shia in this example, has two options when she gets an inheritance from Hafsa: Bilquis may give it all to her two nieces, Safiyyah and Rabia, or she can keep it and pay the khums. Either one is a good result from the Sunni perspective, the former because Islamic inheritance is the right of the heir – once she receives it, she can give it away. The later is, of course, fine because in the Sharia, Bilquis is the one with the right to inheritance.
More or fewer pieces of the pie
In broad strokes, where the Ithna Ashari and Sunni systems of inheritance differ is that there are more slices to the inheritance pie in the Sunni system of inheritance and fewer pieces with Ithna Ashari, with shares going to fewer people. So it is harder, perhaps impossible, to find examples where someone who is entitled to Islamic Inheritance in the Ithna Ashara system is excluded entirely from the Sunni system.
However, it is undoubtedly the case that an heir may get more inheritance in the Ithna Ashari system than they would otherwise receive in the Sunni system. Say we change some facts in the above example, that Hafsa was Shia while the sister Bilquis and the daughters, Safiyyah and Rabia were Sunni. If Hafsa were to do her estate plan under the Ithna Ashari system, she would unjustly deprive her sister Bilquis because, under the Sunni system, her share is mandated in the Sharia. Safiyyah and Rabia would not be entitled to a portion of their inheritance and should give it to their aunt. Doing inheritance wrong here can cause needless complexity and perhaps unnecessary family drama. It would be best for Hafsa to plan her inheritance based on the Sunni system.
The flexibility of the Wasiyyah
In all Sunni schools of thought and among the Ithna Ashari, the wasiyyah is no more than ⅓ of the estate. In the Sunni tradition the Wasiyyah can be for a beneficial cause, including people who do not already have a right to inheritance and of course charities. Among Ithna Asharis, the wasiyyah can be used to give inheritance to virtually anyone, which includes everyone permissible for Sunnis to give their wasiyyah to and rightful heirs who are already getting an inheritance. So, for example, it is possible for a daughter to be both the beneficiary of inheritance by right, plus the beneficiary of the wasiyyah. We had previously discussed the issue of daughters getting half the inheritance of sons, something that is the rule for Sunnis and the default Ithna Ashari rule as well. For Muslims, at least in the Sunni tradition, that is the judgment of Allah. While for Ithna Ashari, this matter is more flexible because of the wasiyyah. Flexibility can bend in several ways. This might include ways that can result in long-term resentment and pain within families.
Just because you can do something, does not mean you should. This may be particularly true when in a mixed Sunni-Ithna Ashari family.
One of the benefits of the Islamic Rules of inheritance and the reason why it tends to promote rather than inhibit family harmony is the relative lack of flexibility. You are entitled to inheritance only to the extent it is ordained by Allah. When someone dies and either leaves you something or not, there is nobody with whom to be upset. When it’s done right, there is no “he manipulated dad” or “that woman took everything.” It is the Judgement of Allah. Even Muslims who are not especially religious understand that.
The best part of Ithna Ashari Rules
While Sunnis have significant theological disagreements with Ithna Ashari, the families formed from these two traditions need not result in long-term rancor because of inheritance issues. The availability of the Khums when inheritance is done “wrong” from an Ithna Ashari perspective, and the ability to not distribute wasiyyah to heirs means that the main benefit in this world of Islamic Inheritance, more harmonious families, can be available to everyone.
To learn more about the fard Islamic Rules of inheritance, you can get a resource guide here.