How to divide estate if there is a fetus among the heirs?
5-10-2013 | IslamWeb
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 9 -Does the deceased have female relatives who are entitled to inherit : (A mother) (A daughter) Number 9 (A wife) Number 2 The number of pregnant wives 1 - The will which the deceased left behind and that is related to his inheritance is : he exempted some houses to be shared as part of each wife with her biological children, and write down that one of his child should not be given his share directly.
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.
The bequest of the deceased that some houses be left to his two wives is a bequest for an heir which is Islamically prohibited for the Prophet, sallallaahu ‘alayhi wa sallam, said: “Allaah has given everyone who has right what is due to him, so there is no will for an heir.” [Ahmad, Abu Daawood, At-Tirmithi and Ibn Maajah. Ahmad and At-Tirmithi deemed it Hasan. Ibn Khuzaymah and Ibn Al-Jaarood strengthened it and Ad-Daaraqutni narrated it from Ibn ‘Abbaas 
with the following addition at its end: "…Unless all the heirs approve of it." And its Isnaad (i.e. chain of narrators) is Hasan as stated by Al-Haafith Ibn Hajar]
Hence, it is clear that bequeathing some houses to the two wives is not a valid will; rather, it depends on the consent of all other heirs, i.e. they may accept it or reject it. If they reject it, then the houses will be Islamically divided among all the heirs.
As for his bequest not to give one of his children his share directly, it does not count at all. That is because the share of the inheritance of the son is transferred to him and becomes owned by him immediately after the death of the deceased - his father - and he has the right to take his share directly without delay caused by the other heirs.
If the deceased did not have heirs except those mentioned in the question, then the mother will get one-sixth of the inheritance due to the existence of the children (of the deceased); Allaah The Almighty 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]
His two wives will get one-eighth, to be divided equally between them, due to the existence of the children for Allaah The Almighty says (what means): {But if you leave a child, then for them is an eighth of what you leave, after any bequest you [may have] made or debt.}[Quran 4:12]
The remaining balance goes to the sons and daughters by Ta’seeb (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 twice the share of the female as Allaah The Almighty says (what means): {Allaah instructs you concerning your children: for the male, what is equal to the share of two females.}[Quran 4:11]
As long as there is a fetus among the children, then it is more appropriate to delay division of the estate until that fetus is born. The delay is more appropriate so that the estate may be divided once and for all. Also, some scholars view that it is prohibited to divide the estate if there is pregnancy until giving birth.
However, if the children insisted on dividing the remaining balance of the estate, then the two wives will be given their share, i.e. one-eighth, the mother will be given her share, i.e. one-sixth because their shares do not differ by the state of the fetus. A share of two males should be withheld for the fetus because it is the maximum probability (of its situation), and each of the sons and daughters is to be given the least share until the situation of this fetus becomes clear.
Accordingly, the estate will be divided into 1488 shares: One-eighth for the two wives (i.e. 186 shares); each of them will get 93 shares, one-sixth (i.e. 248 shares) for the mother, each son will get 68 shares while each daughter will get 34 shares. 136 shares will be withheld for the fetus with the assumption that they are two males. If it appears that they are two males, then the withheld shares will be divided equally between them, i.e. each will get 68 shares. But if this is not the case, then the issue will need reconsideration and much effort to divide the remaining balance among the heirs (sons and daughters). It entails assuming many possibilities and sub-issues. Therefore, we have avoided such possibilities and limited ourselves to what fulfills the need of each heir to divide the estate and get his/her current share.
Finally, it should be noted that the matter of inheritance is a very serious and complex matter, so a mere Fatwa which is an answer issued according to the question is not enough. Rather, the matter should be taken to an Islamic court to look into the case and investigate it as it might be that there is an heir who would not be known except after investigation, and there might also be a will, debts, or other dues that are not known to the heirs. It is known that these rights come in priority over the right of the heirs in the inheritance. Therefore, the inheritance should not be divided without resorting to an Islamic court, if available, in order to fulfill the interests of both the living and the dead.
Allaah Knows best.