What Are the Rulings on a Missing Person’s Inheritance?

Answered By Shaykh Dr. Muhammad Fayez Awad

Question

What are the rulings on a missing person’s inheritance? How should their inheritance be handled if they have been absent for a long time?

Answer

All praise is due to Allah, Lord of the worlds. Blessings and peace be upon the Messenger of Allah, his Family, and his Companions.

The Importance of Wealth in Islam

In Islam, wealth holds significant value and is one of the five essential necessities that must be safeguarded to ensure a dignified and comfortable life for a person. Wealth is both a pillar of religion and a cornerstone of worldly affairs. The importance of wealth in worldly matters is well understood and uncontested, as it is often said that “wealth is the backbone of deeds” and “wealth is the foundation of life.” This is reflected in Allah’s (Most High) statement:

“Do not entrust the incapable (among your dependants) with your wealth which Allah has made a means of support for you.” [Quran, 4:5]

Wealth as a Pillar of Religion

Wealth is a pillar of religion, first and foremost exemplified in the third pillar of Islam, Zakat. Zakat is a financial act of worship and a financial pillar of Islam.

The Honor and Protection of Wealth in Islam

Wealth is honored in Islam, as it enables its possessor to live with dignity and independence—giving without needing to ask, and spending without needing to beg. The Prophet (Allah bless him and give him peace) said, as narrated by Hakim Ibn Hizam (Allah be pleased with him):

“The upper hand is better than the lower hand, and begin with those who are under your care. The best charity is what is given when one is self-sufficient, and whoever refrains from asking, Allah will make him content, and whoever seeks self-sufficiency, Allah will make him self-sufficient.” [Bukhari; Muslim]

Abdullah Ibn Mas‘ud (Allah be pleased with him) reported that the Prophet (Allah bless him and give him peace) said:

“There is no envy except in two cases: a man whom Allah has given wealth and he uses it up for the truth, and a man whom Allah has given wisdom and he judges and teaches with it.” [Ibid.]

Prohibition of Unjustly Consuming Wealth

Allah (Most High) has safeguarded a person’s right to own the wealth they have earned and has forbidden people from consuming the wealth of others unjustly, as He says:

“Do not consume one another’s wealth unjustly, nor deliberately bribe authorities in order to devour a portion of others’ property, knowing that it is a sin.” [Quran, 2:188]

And Allah (Most High) has warned those who unjustly consume the wealth of orphans with severe punishment, as He says:

“Indeed, those who unjustly consume orphans’ wealth (in fact) consume nothing but fire into their bellies. And they will be burned in a blazing Hell!” [Quran, 4:10]

Conditions for the Transfer of Wealth Through Inheritance

Therefore, Allah (Most High) has safeguarded a person’s right to own and possess wealth, and He has given it great importance. Wealth does not transfer to another person through inheritance until the death of the owner is confirmed.

Additionally, for wealth to transfer through inheritance, the inheritor’s life must be confirmed at the time of the decedent’s death. It is crucial to ascertain both of these matters: the life of the heir at the time of the decedent’s death and the death of the decedent so that their wealth can be transferred to their heirs. [Haytami; Tuhfat al-Muhtaj; Bujayrimi, Hashiyat al-Bujayrimi ‘ala al-Khatib]

Definition of a Missing Person in Islamic Jurisprudence

The question at hand implies that the heirs are missing. What should be done if we want to divide the estate? To complete the discussion, we will address both topics: the absence of the decedent and what should be done with their wealth and the absence of the heirs and what should be done with their share of the inheritance. This is referred to in Islamic jurisprudence under the chapter “The Inheritance of the Missing Person.”

Understanding the Term “Missing Person”

Linguistically, it comes from the root word “loss,” meaning to seek something and not find it. Technically, it refers to someone who is absent and whose life or death is unknown.

A missing person can either be a decedent (muwarith) or an heir (warith):

Rulings for a Missing Person as a Decedent

The missing person is considered alive concerning their wealth, so no one inherits from them, and this remains the case until their death is confirmed either through direct observation or by widely accepted reliable news.

If it is proven through evidence that the missing person has died, the state of being missing ends, as the uncertainty surrounding their life or death is removed, and their wealth is then distributed among their heirs. If their death is not definitively proven, one must wait until they reach an age where it is presumed they would have died.

In the book Al-Minhaj, it is stated: “The judge must make a diligent effort and then rule on their death and give their wealth to those who inherit at the time of the ruling.” [Bujayrimi, Hashiyat al-Bujayrimi ‘ala al-Khatib]

According to the Shafi‘i School, the correct and widely accepted opinion is that the age of presumed death is left to the discretion of the judge. Some estimate it to be sixty-two years, others seventy, eighty, one hundred, or even one hundred and twenty years. [Shirbini, Mughni al-Muhtaj]

Rulings for a Missing Person as an Heir

If one of the missing person’s inheritors dies during the waiting period, we consider the following:

If the Missing Person Has No Other Heir:

The entire inheritance is withheld until the status of the missing person becomes clear.

If There Is a Co-Heir with the Missing Person:

The present heirs are dealt with according to what is most beneficial for them. This includes estimating whether the missing person is alive or dead. Those who inherit, regardless of whether the missing person is presumed alive or dead, will receive their share. Those whose shares would differ based on whether the missing person is alive or dead will receive the lesser of the two shares.

Those who would inherit only if the missing person is presumed dead will receive nothing. The remaining wealth is withheld until the status of the missing person becomes clear, either by the appearance of their death, their return, or a judge’s ruling of their death.

This opinion is held by Ahmad Ibn Hanbal, Qadi Abu Yusuf, and Hasan Ibn Ziyad from the Hanafi School, a narration from Qasim about Malik, and it is the correct opinion of the Shafi‘i School. It is also the opinion upon which the fatwa and practice are based in the four schools of thought. [Rahbi, al-Rahbiyya fi ‘Ilm al-Fara’id; Baqri, Hashiyat al-‘Allama al-Baqri bi Sharh Sibt al-Mardini]

We ask Allah to grant us lawful wealth and to purify us from all sins and doubts. Indeed, He is All-Hearing, All-Responsive.

[Shaykh] Dr. Muhammad Fayez Awad