Tuesday, November 21, 2017 - 3 Rabi' al-Awwal 1439
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Can a Muslim inherit from his/her non-Muslim family?

Can a Muslim inherit from his/her non-Muslim family?

Answer

The majority of scholars have maintained that it is impermissible for a Muslim to inherit from a non-Muslim and vice-versa. They premised their opinion on the words of the Prophet (peace and blessings be upon him) who said: “A Muslim does not inherit from an unbeliever and an unbeliever does not inherit from a Muslim” (recorded by Bukhari and Muslim), and “People of two different religions do not inherit from each other” (recorded by Abu Dawud, Al-Tirmidhi, and Ibn Majah).
However there are a number of evidences that prove that some of the Prophet’s Companions permitted Muslims to inherit from non-Muslisms.

Evidences on the permissibility of Muslims inheriting from non-Muslims
A group among the Companions of the Prophet (peace and blessings be upon him) permitted a Muslim to inherit from a non-Muslim. Among those was Mu’adh Ibn Jabal, Mu’awayah Ibn Abu Sufyan, Sa’id Ibn al-Musaib, Ibnrahim al-Nakh’y, Mohammed Ibn ‘Ali Ibn al-Hanafiah, Mohammed Ibn ‘Ali Ibn Hussien, Masruq Ibn al-Ajda’ and Yahia Ibn Ya’mar.
The renowned scholar, Badr al-Din al-‘Ayni mentioned in his voluminous work ‘Umdat al-Qari the question of a Muslim inheriting from a non-Muslim and he states,
“As for the Muslim, can he inherit from a non-Muslim? The majority of the Companions (may God be pleased with them) maintained its impermissibility and this was the position adopted by our scholars and the Shafi’is, but this ruling is a matter of istihsan (juristic preference). However, according to qiyas (analogical reasoning) a Muslim can inherit from a non-Muslim. This opinion was maintained by Mu’adh Ibn Jabal, Mu’awayah Ibn Abu Sufyan, Masruq, al-Hasan, Mohammed Ibn al-Hanafya and Mohammed Ibn ‘Ali Ibn Hussien.”

In Mirqat al-Mafatih Sharh Mishkat al-Masabih authored by al-Mula ‘Ali al-Qari, he states that,
“Al-Nawawi [may God grant him mercy] said: Muslims are in consensus that a non-Muslim is not to inherit from a Muslim and there is a controversy over the position of the Muslim’s inheritance from a non-Muslim. The majority among the Companions and Tabi’een [the followers of the Companions] and their successors maintained the impermissibility of a non-Muslim inheriting from a Muslim. However, Mu’adh Ibn Jabal, Mu’awaya, Sa’id Ibn al-Musaib, Masruq (may God grant them mercy) and others maintained the permissibility of a Muslim’s inheritance from a non-Muslim; they based their opinion on the hadith of the Prophet (peace and blessings be upon him): “Islam is superior and will never be surpassed”. The majority of scholars opined the authenticity of the hadith, however the hadith refers to the superiority of Islam over other religions without any mention of inheritance. Therefore, explicit textual evidence (referring to the Prophetic tradition prohibiting inheritance between Muslims and non-Muslims) is not to be ignored.

Suanan Sa’id Ibn Mansour
“Sa’id reported that Hushaim said: Dawud reported through al-Sha’bi who said: Mu’awyah was informed that some Arabs were prevented from inheriting from their fathers because of Islam. So, Mu’awyah said: “We inherit from them but they do not”. Masruq Ibn al-Ajda’ said: “There was a no more controversial ruling in Islam than this unprecedented one.”
“Sa’id reported that Hushaim reported through Mujalid and said: “Al-Sha’bi narrated that a man came to Mu’awayah and said: ‘How do you find Islam to me, is it beneficial or harmful?’ Mu’awyah replied: ‘Islam is beneficial to you, what is your question?’ The man said: ‘My father died as a Christian and I am a Muslim. My Christian brothers said, we have more right to our father’s inheritance than you.’ Then Mu’awyah said: ‘Bring them to me,’ and the man did. Mu’awayh said: ‘You (referring to the Christian brothers) and him (referring to the Muslim brother) have the same inheritance rights in your father’s estate.”
Mu’awyah wrote to Zyad: “Allow Muslims to inherit from non-Muslims and forbid non-Muslims from inheriting from Muslims.” When his letter reached Zyad, he sent for Shuraih the judge who used to neither allow Muslims to inherit from non-Muslims nor vice versa. When Zyad gave him the orders and he applied them, Shuraih used to say whenever he applied this new ruling of inheritance: “This is the ruling implemented by the Commander of the Faithful.”
The Umayyad Caliphs succeeding Mu’awiyah followed this ruling until ‘Umar Ibn Abdul-Aziz retrieved the first position and Yazid Ibn Abdul-Malik followed him. When Hisham Ibn Abdul-Malik became the caliph, he followed the position adopted by former caliphs.

Al-Sunan al-Kubra authored by al-Bayhaqi
Abu Bakr Ibn Furak reported through Abdullah Ibn Ja’far through Yunis Ibn Habib through Abu Dawud al-Taylasi through Shu’ba through Amr Ibn Abu Hakim through Abdullah Ibn Buraida through Yahya Ibn Ya’mr through Abu al-Aswad al-Dayli who said: “Mu’adh Ibn Jabal was asked about a deceased non-Muslim who was survived by his Muslim son. Mu’adh permitted the boy to inherit from his father and said: ‘I heard the Messenger of God (peace and blessings be upon him) say: ”Islam is superior and will never be surpassed” (narrated by Shu’bah who is majhoul and therefore the hadith is disconnected.

Sharh al-Sunnah authored by al-Baghawi
The position adopted by the scholars among the Companions of the Prophet (peace and blessings be upon him) and their successors that non-Muslims do not inherit from Muslims nor Muslims from non-Muslim because the wilaya (patronage) between them is severed. An exception to this is what was narrated from Mu’adh and Mu’awyah who said: “A Muslim inherits from a non-Muslim but a non-Muslim does not inherit from a Muslim.”
This was the position adopted by Ibrahim al-Nakh’y which is similar to the ruling allowing a Muslim man to marry a Christian or Jewish woman but not vice-versa. This was also the position adopted by Ishaq Ibn Rahwya.

The first to permit Muslims to inherit from non-Muslims
Mohammed Ibn Yahia Ibn Kathir reported through Abu al-Yaman through Shu’aib through al-Zuhri who said: “He was asked about the first to permit a Muslim to inherit from a non-Muslim and to whom he permitted it.”
He said: “The adopted sunnah of the Prophet (peace and blessings be upon him), Abu Bakr and ‘Uthman is that neither should a Muslim inherit from a non-Muslim nor a non-Muslim from a Muslim. However, Mu’awyah is considered the first to permit a Muslim to inherit from a non-Muslim but not vice-versa. Afterwards, Banu ‘Umayah followed the position of Mu’awyah until the reign of ‘Umar Ibn Abdul-Aziz who retrieved the earlier position and prohibited both Muslims and non-Muslims from inheriting from each other. Then, Hisham Ibn Marawan followed the position adopted by Mu’awyah and Banu Umayah.
In conclusion, evidence shows that there is a jurisprudential debate over this matter. Therefore, we maintain the permissibility of a Muslim inheriting from his non-Muslim family based on the acts of a number of the Prophet’s Companions. Since there is no consensus over the matter, it would be wrong to maintain the absolute impermissibility of a Muslim inheriting from his non-Muslim family. Thus the issue is open to juristic preferences and consequently adopting the opinion of those who permitted a Muslim inheriting from his/her non-Muslim family is valid and sound.
God the Almighty knows best.

 

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