Can the Heirs Agree to Split the Inheritance in a Way Different than What Allah Prescribes?

Answered by Shaykh Dr. Muhammad Fayez Awad

Question

Can the heirs agree to split the inheritance in a way different than what Allah prescribes?

Answer

Praise be to Allah, and may peace and blessings be upon the Messenger of Allah, his family, his companions, and those who follow him.

Allah Most High has revealed the detailed division of inheritance in His noble Book through clear, definitive verses. It is confirmed in the hadith that the Messenger of Allah (Allah bless him and give him peace) said: “Indeed, Allah has given everyone their due right, so there is no bequest for an heir.” [Tirmidhi, Ahmad]

And it is authentic that the Prophet (Allah bless him and give him peace) said: “Fulfill the inheritances to their rightful people.” [Bukhari, Muslim] In a narration by Imam Muslim (Allah have mercy on him), he said: “Divide the property among the rightful heirs according to the Book of Allah.”

A Warning against Violation of Inheritance Law

If we delve deeper into what Allah Most High has appended to the preceding inheritance verses, we would see a warning and threat against their violation.

Allah Most High says: “These ˹entitlements˺ are the limits set by Allah. Whoever obeys Allah and His Messenger will be admitted into Gardens under which rivers flow, to stay there forever. That is the ultimate triumph! But whoever disobeys Allah and His Messenger and exceeds their limits will be cast into Hell, to stay there forever. And they will suffer a humiliating punishment.” [Quran 4:13-14].

Scholars unanimously agree that the ownership of the estate transfers to the heirs upon the death of the deceased after the expenses for their preparation, shrouding, and burial, as well as the payment of debts owed to people and rights due to Allah Most High, and the execution of their wills within the limit of one-third. [al-Mawsu‘a al-Fiqhiyya al-Kuwaitiyya]

After this, the estate must be divided according to what Allah Most High has detailed in His Book.

Conditions for Dividing the Estate by Mutual Consent

However, it is permissible for the heirs to divide the estate by mutual consent, even if it increases or decreases their legal share. The following conditions must be met for the consensual division of the estate among the heirs:

• All heirs must be sane and mature adults, with ‘maturity’ in the Shafi‘i School, meaning religious righteousness and financial responsibility [al-Rawda].
• The consent must be genuine, without coercion, compulsion, or embarrassment. This is only realized if the consent is free and unencumbered, not influenced by pressure or coercion, and not dictated by someone else’s interest, like the consent of a sick person or a bankrupt debtor.
• It must also be informed, not hindered by ignorance, deception, exploitation, error, or similar factors that could impede its realization. Coercion, ignorance, error, deception, and exploitation are impediments to consent, as is consent conditioned on the approval of another person [al-Mawsu‘a al-Fiqhiyya al-Kuwaitiyya]
• The heirs (in particular), and every Muslim (in general), must believe that the division by Allah Most High is the most just and best. It is forbidden for them to deviate from it out of dislike for it or believing it to be unjust or unsuitable for the times, as the Westernizers and their ilk claim.

Allah Most High says: “Is Allah not the most just of all judges?” [Quran, 95:8], and He says: “Who could be a better judge than Allah for people of sure faith?” [Quran, 5:50]

Once this is established, if the conditions mentioned above are met, the division of the inheritance by mutual consent is permissible. This is considered a form of reconciliation among the heirs, which is legislated by the Book of Allah Most High, and the Sunna of His Prophet (Allah bless him and give him peace).

Evidence for its legislation includes Allah’s saying: “There is no good in most of their secret talks—except those encouraging charity, kindness, or reconciliation between people. And whoever does this seeking Allah’s pleasure, We will grant them a great reward.” [Quran, 4:114], and His saying: “Whoever suspects an error or an injustice in the will and brings about a fair settlement among the parties will not be sinful. Surely Allah is All-Forgiving, Most Merciful.” [Quran, 2:182].

A hadith narrated by Abu Huraira (Allah be pleased with him), states that the Prophet (Allah bless him and give him peace) said: “Reconciliation is permissible among Muslims except for a reconciliation that makes lawful what is unlawful or unlawful what is lawful.” [Hakim, Tirmidhi, Ibn Maja]

Summary

In summary, Allah Most High has clarified the division of inheritance in His noble Book in detail, particularly in Sura al-Nisa.

Scholars agree that the ownership of the estate transfers to the heirs immediately upon the death of the deceased, the fulfillment of the due rights, and the execution of their wills, as death nullifies ownership if there are no debts on the deceased.

It is permissible for the heirs to divide the estate by mutual consent, which is considered a form of reconciliation among the heirs. Reconciliation is legislated by the Book of Allah Most High, and the Sunna of His Prophet (Allah bless him and give him peace). And Allah guides to the straight path.