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Fatwa CenterDivision of estate among father, husband, son and two daughters
Question
Assalaamu alaykum. Please calculate the inheritance according to the following information:
- Does the deceased have male relatives who are entitled to inherit: (A son) Number 1 (A father) (A husband)
- Does the deceased have female relatives who are entitled to inherit: (A daughter) Number 2
- Information about the deceased’s debts: (Debts to people)
- Additional information: The debts are a mortgage on the residence. The deceased has a sister, but she is not of sane mind, and three brothers that are not practicing Islam; two are homosexuals, and one is married to a Christian and observes Christian holidays.
Answer
All perfect praise be to Allaah, The Lord of the worlds. I testify that there is none worthy of worship except Allaah and that Muhammad, sallallaahu ‘alayhi wa sallam, is His slave and Messenger.
As long as the deceased is liable for debts, then these debts must be paid off before the division of the estate among the eligible heirs unless the creditors choose to write them off. The settlement of debts takes precedence over the right of the heirs to their shares in the deceased’s estate. Allaah, The Exalted, says (what means): {…after any bequest he (may have) made or debt…} [Quran 4:11]
The Kuwaiti Encyclopedia of Fiqh reads, “It is incumbent on the heirs to pay off the debts of the deceased before dividing the estate; Allaah, The Exalted, says (what means): {…after any bequest he (may have) made or debt…} [Quran 4:11] This is according to the scholarly consensus so as to clear the deceased's liability from the debts and people's rights or so that his skin would cool down, as mentioned in the hadeeth of the Prophet, sallallaahu ‘alayhi wa sallam.”
After the repayment of debt, the remainder of the estate should be divided among the eligible heirs. If the deceased left behind no other heirs entitled to inherit other than those mentioned in the question, then her father gets one-sixth of the estate as a fixed share because she has descendants entitled to inherit. Allaah, The Exalted, says (what means): {And for one’s parents, to each one of them is a sixth of his estate if he left children.} [Quran 4:11]
Her husband gets one fourth of the estate as a fixed share because she has descendants (direct children) entitled to inherit. Allaah, The Exalted, says (what means): {But if they have a child, for you is one fourth of what they leave, after any bequest they (may have) made or debt.} [Quran 4:12]
The remainder should be divided among her children by virtue of Ta‘seeb (i.e. by virtue of having a paternal relation with the deceased and not having an allotted share, so they get what is left after the allotted shares have been distributed). The male gets double the share of the female. Allaah, The Exalted, says (what means): {Allaah instructs you concerning your children (i.e. their portions of inheritance): for the male, what is equal to the share of two females.} [Quran 4:11]
The deceased's brothers and sister are not entitled to inherit in this case because of the presence of her son and father; each of the son and father wholly exclude the deceased's brothers and sisters from the inheritance. This applies to the sane and insane and the righteous and impious among the brothers and sister.
Ibn Al-Munthir 
wrote, “The scholars agreed in consensus that the full-brothers and full-sisters, and the half-brothers and half-sisters from the father’s side only, do not inherit if there is a son or a grandson (from the son) or a great grandson, or a father.” [Al-Ijmaa’]
Hence, the estate should be divided into forty-eight shares; the deceased's father gets one sixth (eight shares), the husband gets one fourth (twelve shares), the son gets fourteen shares, and each daughter gets seven shares.
Lastly, the brothers of the deceased should be admonished to quit the sins that they are committing, for sodomy (homosexuality) is a grave, major sin. Muslim scholars unanimously agreed that whoever believes that sodomy is allowable (i.e. deems lawful what is unlawful) is declared a disbeliever as long as it is inconceivable that an individual in his standing would be ignorant of the prohibition of such an act. It is also prohibited for Muslims to partake in the religious celebrations and festivals of the Christians. It is incumbent on these Muslims to repent to Allaah of such sins. The situation of the deceased's brothers is a living example of the gravity of living in non-Muslim countries.
We have issued endless fataawa underlining the gravity of living in non-Muslim countries and advised the Muslims living there to move to Muslim countries. It should be noted that those who know the religious ruling in this regard and are able to move out of such non-Muslim countries but choose not to are imperiling themselves to bearing sins. We implore Allaah to rectify the affairs of Muslims.
Allaah knows best.
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