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Fatwa CenterVerbal gifting of property
Question
Assalaamu alaykum. My husband and I have been married for several years and do not have children yet. We have a joint account and property that is jointly registered in both our names. Despite my name being on the house deed and the accounts, I have not contributed much financially. However, my husband said that he gifts the house and money in the accounts to me. As my name is already jointly on the house/accounts, I do not want everything transferred to my name solely and am happy/want to to keep his name jointly. My question is whether this verbal gifting between us is sufficient. Would I be exempt from giving his family members any inheritance from what he has verbally gifted to me, or would I have to include those gifts in the case of inheritance if anything were to happen to him? The law of the country entails that what has been verbally gifted to me be given to me with ease, but I need to know if this understanding between us is acceptable Islamically. Please advise. May Allah reward you.
Answer
All perfect praise be to Allah, the Lord of the worlds. I testify that there is none worthy of worship except Allah and that Muhammad, sallallahu ‘alayhi wa sallam, is His slave and Messenger.
The scholars held different opinions on whether a gift is declared valid and binding merely on account of the offer and acceptance between the two parties involved (gift-giver and beneficiary). The majority of the scholars held that a gift is not binding unless the beneficiary takes the gift into his full possession and can dispose of it freely (which is called Qabdh in the Islamic Shariah). They also differed on whether the gift becomes invalid or not upon the death of the gift-giver before Qabdh takes place.
The Kuwaiti Encyclopedia of Fiqh reads:
"The scholars of Fiqh differed regarding Qabdh (taking the gift into the beneficiary's full possession) as a condition for the transfer of ownership of the gifted property to the beneficiary; they held two opinions in this regard:
The first, which is held by the Hanafis, Shaafiʻis, and Hanbalis, is that Qabdh is a condition for the transfer of ownership to the beneficiary and that the gift is not legally owned by the beneficiary unless he takes it into his full possession. The Shaafiʻis stipulated that the gift-giver must give his consent to the Qabdh.
The second opinion, held by the Maalikis and Ibn Abi Layla, is that Qabdh is not a condition for the transfer of ownership to the beneficiary; rather, ownership is established for him by virtue of the contract, and the gift-giver is required to fulfill Qabdh and honor the contract."
The Kuwaiti Encyclopedia also reads:
"The scholars of Fiqh differed on whether the gift becomes null and void upon the death of the gift-given before its Qabdh takes place. There are two opinions in this regard:
The first, held by the Hanafis, Maalikis, some Shaafiʻis, and some Hanbalis, is that the gift becomes null and void upon the death of the gift-giver before Qabdh.
The second, which is the adopted opinion of the Shaafiʻi and Hanbali schools, is that if the gift-giver dies before Qabdh, the gift contract does not become null and void because it is binding, so it is not invalidated by death, similar to the sale contract with an option of Khiyaar (option to withdraw from a contract). The heir of the gift-giver acts on behalf of the deceased in allowing the beneficiary to take the gift into his possession and giving his consent to it. The heir is given the choice to do so; he may allow the beneficiary to take the gift into his possession or not."
Based on the above, our advice to you, if you wish to establish this gift and make it binding, is to take it into your possession before an impediment occurs, such as the husband's death or bankruptcy, in order to avoid an area in which there is a scholarly difference of opinion and avoid future disputes.
However, we would like to point out that some scholars do not validate that a husband gifts his house wherein he resides to his wife.
Allah knows best.
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