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Inheritance Of The Brothers and Sister


The Brothers & the Sisters



            In case of absence of the son and the father [The inheritance of the brothers and sisters with the grandfather however needs explanation according to the Four Schools which will be discussed in the paragraph dealing with the grandparents in this chapter]  and the brothers and sisters inherit; they will share the estate with the mother and the daughters according the Sunni jurists.  According to the Imámís, they inherit only in the absence of the two parents and the children and their children regardless of their being males or females.  They also divide the brothers and sisters into three categories:



Brothers and sisters from the two parents.

Brothers and sisters from the father.

Brothers and sisters from the mother.



Brothers and sisters from the two parents



There are cases when dealing with the Brothers and sisters from the two parents:



If they are mixed males and females, and in case there are no one from the residuaries and agnates; that is there is no father, father, daughter, grandmother, son, nor son’s son;  in such a case they will inherit the entire estate and divide it amongst them according to “one share of the male equals that of two females”.principle.

If they are only males, or males and females along with a brother or a sister from a mother’s side; then the mother’s son takes the sixth and the rest goes to the children from the two parents according to the principle “one share of the male equals that of two females”.  If the mother’s children are two or more then they take the third --regardless of them being males or females—the rest goes to the children of the two parents.

If the deceased has one sister from the two parents, then she inherits the half as a residuary.  If she has one sister or more, then they inherit two thirds as residuaries.  If is no daughter with the sister and the sisters from two parents, nor are there one from amongst the brothers and sister from the mother, nor authentic grandmothers and authentic grandfathers [An authentic grandfather according to Sunni jurists is one who is not bonded in his relation to the deceased by a female; i.e. the father’s father.  The Authentic Grandmother is one that is not related to the deceased via a non-authentic grandfather; i.e. the mother’s mother.  In case the bond is due to a non-authentic grandfather like the mother of the mother’s father, the grandmothers will then be considered non-authentic.]  the rest will be Returned to the sister and sisters according to the Imámís.  The Sunni jurists say:  the rest shall be given to the agnates who are:  The paternal uncle from the two parents, if he does not exist then the paternal uncle from the father’s side, id he does not exist then the paternal uncle’s son from the two parents side, if he does not exist then the paternal uncle’s son from the father’s side, if he does not exist then the rest shall Return to the sister or sisters according to the \anafís  and \anbalís .  Accordingly, the Return go only to the residuaries, its condition is the absence of agnates.  According to Sháfi`ís   and Málikís, the rest goes to the treasury.  In short, the status of sisters from the father or the mother is similar to that of uternal daughters; one takes the half, two or more take two thirds.  If they are to inherit along with the brothers from the two parents, they divide it amongst them according to “one share of the male equals that of two females” principle.

Sunni Jurists say:  If the deceased has a brother from the two parents along with a brother from the father’s side, then the first shall inherit and the second will be dropped from the list of heirs.  If there is no brother from the two parents’ side, then the brother from the father’s side will have the status of the brother from the two parents’ side.              If the deceased has one sister from the two parents’ side and one sister or more from the father’s side, the sister from the two parents’ side will take the half while the sister or sisters from the father’s side take the sixth unless there is a male with sisters from the father’s side in which case they will share with their brother the half according to “one share of the male equals that of two females” principle.              If the deceased has sisters from the two parents side and sisters from the father’s side, the sisters from the two parents’ side take two thirds and the sisters from the fathers side inherit nothing unless they have amongst them a male in which case they will share with their brother the rest according to the “one share of the male equals that of two females” principle.              The conclusion is that the brother from two parents’ side bar the brother from the father’s side, one sister from the two parents’ side does not bar sisters from from the father’s side, and the sisters from the two parents’ side bar the sisters from the father’s side who do not have a male amongst them.              Imámís say:  The relative through two parents to the brothers and sisters bars the relative through the father alone regardless of being male or female.  For example, if the deceased is survived by one sister from the two parents side and ten brothers from the father’s side, she will inherit and they won’t.

If there are one or two uternal daughters with the sister or the sisters, the daughter or the daughters  shall inherit the share prescribed in the Book of God from the half or the two thirds, the rest goes to the sister or the sisters according to the Sunnis.  The son’s daughter has the same status as that of the uternal daughter.              Imámís say:  the entire estate goes to the daughter or daughters and the sister or sisters inherit nothing.



The brothers & sisters from the father’s side



            In the absence of the brothers and sisters from the side of the two parents, the status of the brothers and sisters from the father’s side will be the same as that of the former.  The ruling in either case is the same in that; one sister takes the half if more than one sister then they take the two thirds the return is also according to the previous analysis.



Brothers and sisters from the mother’s side



            Brothers and sister from the mother’s side do not inherit along with the father, mother, the grandfather from the father’s side, the children –males and females-- [According to Sunnis, the daughter bars the brothers and sisters from the mother’s side but does not bar the brothers and sisters from the two parents side or from the father’s side.  This is the case despite their saying:  “If the residuaries and agnates are present, the inheritance shall be dispearsed first to the residuaries then the rest is for the agnates.”  Given that the mother’s son is a residuary while the son from the two parents’ side or from the father’s side is agnate, it should be necessary then that the daughter does not bar the mother’s son or bar the mother’s and father’s son as held by the Imámís.], nor the children’s daughters.  That is to say that the brothers and sisters from the mother’s side should be dropped because of the mother, the daughter, and the son’s daughter.  We have presented in the section of the Inheritance of the mother and daugher that the sister and brother from the two parents’ side or from the father’s side do inherit along with the mother and with the daughter.  In fact if the brothers and sisters from the two parents’ side or from the father’s side were to share the inheritance with the daughters’ children, the entire estate go only to the brothers and sisters.  They bar daughters’ children even if there are males amongst them according to the Sunni jurists.  Brothers and sisters from the mother’s side however will not be dropped because of the brothers and sisters from the side of the two parents or from the father’s side.  One mother’s child then inherits the sixth –regardless of being male or female—and for more than one the third –regardless of being male or female—then if mixed they divide it amongst themselves according to the principle “one share of the male equals that of two females.”



Side Issue



            The Author of al-Mughnee says:  If the sister from the two parents, sister from the father, and a sister from the mother; then the first shall inherit the half, the second inherits the sixth, and the third inherit also the sixth.  The rest shall be Returned on  them proportionally to their shares.  The Obligation (Fardh) shall be of five shares:  three fifths for the sister from the two parents, one fifth for the sister from the father, and one fifth from the sister from the mother.

            Imámís say:  Sister from two parents shall have half, one sixth for the sister from the mother, and nothing for the sister from the father because she is dropped by the sister from the two parents.  The rest shall be returned over the sister from the two parents [Imámís do not make Radd of the child of the mother if present with the child of the two parents or the child of the father.  They permit radd on the child of the two parents or the child of the father only.] alone.  The Faridhah is then out of six shares:  5/6 five sixth from the sister from the two parents, and only one sixth for the sister from the mother’s side.



Children Of The Brothers And Sisters



            Jurists of the Four say:  The father’s brother bars the two parents’ brother from inheritance.  Children’s of the two parents’ brother bar the children of the brother from the father’s side.  The children of the sisters –regardless what side they are from—and the children of the brothers from the mother’s side, and the daughters of the brothers from the two parents side or the father’s side, all of whom are considered Dhawi al-Arhaam, shall not inherit if the paternal uncles from the two parents’s or from the father’s side exist; nor  will they inherit along with their children.  If there are no paternal uncle from the two parents’ side or from the father’s side nor their children, then according to the \anafís  and \anbalís  they become entitled to inheritance, while Sháfi`ís   and Málikís bar them.and give the entire estate to the treasury [On the basis that the sons of the brother from the two parents’ side or from the father’s side are considered agnates while the daughters are considered Dhawee Arhaam, the jurists of the Four agreed that if the deceased is survived by a son of a brother from two parents’ side or from the father’s side –and there are with him a sister from his own father and mother—then only he shall inherit but not she.]  (al-Bidayah wa al-Nihayah, vol. 2, p. 345.  Al-Mughnee, vol. 6, p. 229)

            Imámís say:  The children of the brothers and sister –regardless of the side they come from—will not inherit if there is one of the brothers or sisters –from either side—and that whenever the brothers and sisters exist no more, then their children shall take their place/status.  Each of them shall take the share of he who is the cause of his relation.  That is; the sixth to the son of the brother or the sister from the mother’s side, the third for the children of the brothers from the mother’s side –if there were many brothers, the rest is for the children of the brother from two parents’ or from the father’s side.  From the children of the brothers, the ones who are related based on the father’s side shall be dropped in case there are those who are related based on the two parents’ side.  That is; the son of the brother from the father’s side shall not inherit along with the son of the brother from the two parents side.  The children of the brothers and sisters from the mother’s side however, divide the estate equally just like their fathers while the children of the brothers and sisters from the father’s side divide the estate unequally according to “one share of the male equals that of two females.” Like their fathers.  The upper amongst the children of the brothers bars the lower.  That is the son of the son of the brother will be dropped by the presence of the daughter of the sister based on the rule “the closest then the closer”.  The children of the brothers –just like their fathers—share the inheritance with the grandfathers in case of absence of the fathers.  That is; the son of the brother or the son of the sister will inherit with the grandfather from the father’s side the same way the father of the grandfather inherits with the brother in case of absence of the grandfather.



The Grandfather From the Mother’s Side



            Sunni Jurists say:  The grandfather from the mother’s side is considered amongst Dhawee al-Arhaam who do not inherit with residuaries or agnates.  Therefore, the grandfather from the mother'’ side will not inherit with the grandfather from the father’s side nor with the brothers and sisters, nor with the sons of the brothers from the two parents's’or the father’s side, nor with the paternal uncles, nor with the paternal uncles’ sons.  However, if all of them are non-existent and none of the residuaries is present, then the father of the mother will get the inheritance according to the \anafís  and \anbalís .  The Sháfi`ís   and Málikís however say that they shall not inherit at all.

            Imámís say:  The Grandfather from the mother’s side inherits with the grandfather from the father’s side.  He aslo inherits with the brothers and sisters from all sides.  They also say that this grandfather bars paternal and maternal uncles –from all sides—from inheritance.  That is so because he is of second order, while they are of third order on the list of inheritors.  If the grandfather exists along with the paternal uncles from the two parents’ side, then the grandfather from the mother’s side shall take the entire estate and nothing goes to the paternal uncle.



Grandmothers



            Jurists agreed that the mother bars the grandmothers – from all sides—from inheritance.

            Sunni jurists say:  In absence of the mother, her mother shall take her place;  she will share the inheritance with the father and with the grandfather from the father’s side; she will get the sixth as her share with the two of them.  There is no difference in allowing two grandmothers to inherit together such as the case of the mother of the mother and the father’s father where the two divide the sixth equally between them according to Sunni Jurists.

            The closest  from amongst the grandmothers bars the furthest of the grandmothers from her side.  That is;  The mother’s mother bars her mother and so does the father’s mother.  The closest from the mother’s side –like the mother’s mother—bars the furthest from the father’s side –like the mother of the grandfather from the father’s side.  Sunni Jurists disagreed whether the closest from father’s side –like the father’s mother—can bar the the furthest from the mother’s side –like the grandfather’s mother from the mother’s side.  (al-Iqnaa’ Fee Halli alfadh Abi Shujaa’, vol. 2.  Al-Mughnee, vol. 5, chapter al-Fara’idh).  According to the \anbalís , the father’s mother inherits along with her son; she takes the sixth and he takes the rest.

            Imámís say:  If the grandmother from the mother’s side and the grandmother from the father’s side are to inherit together; the former shall take the third while the later takes the two thirds because the grandmother related because of the mother takes only the third –be they one or more in which case they share it equally.  The one related through the father on the other hand takes the two thirds—be they one or more in which case they share it unequally.



Grandfather From The Father’s Side



            Jurists of the Four agree that father’s father shall have the status of the mother in her absence.  He shall share the inheritance with the son like the father.  He is different from him in the case of father’s mother; she does not inherit along with the father except according to \anbalís .  She inherits with the grandfather from the father’s side; that is with her husband.  The father differs from the grandfather also in the case where the two parents are to inherit with one of the spouses.  In which case; the mother, the father, and one of the spouses the third of the remainder of the share of one of the spouses.  If the mother is to inherit with the grandfather and one of the spouses, she takes one third of the original estate not a third of the remainder.

            Jurists of the four also agree that the grandfather from the father’s side bars the brothers and sisters from the mother’s side from inheritance  and the children of the brothers from the two parents’ side or from the father’s side.  Sunni jurists however disagreed amongst each other whether the grandfather from the father’s side can bar the same brothers and sisters from the two parents’ or the father’s side or does he share with them the estate?

            Abu Hanifah says:  The grandfather from the father’s side bars the brothers’ and sisters from inheritance regardless of what side they come from.  Just like the father barring that.  It should be known that the grandfather from the mother’s side does not bar the brothers and sisters from all side according to jurists of the Four because he is one of Dhawee al-Arhaam as we mentioned previously.

            Málikís, Sháfi`ís  , \anbalís , Abu Youcef, and Mohammed Inb al-Hassan (the two students of Abu Hanifah) say:  The brothers and sisters from the two parents’ side or from the father’s side share inheritance with the grandfather from the father’s side.  As for the formula by which they inherit with him; he will be given the greatest share from the third of the entire estate and his regarding of the same status as that of the brother.  Accordingly; if the brothers were a male a female, then he will be considered like a brother, thus taking two shares out of five shares.  If the brothers were three males, then he takes one third, because was he to be considered a brother with them he will take the fourth (al-Mughnee vol. 6, p. 217)

            Imámís say:  The grandfathers and the grandmothers, the brothers and the sisters share the inheritance and their order is the same one.  So if they are together and shared the relationship to the deceased; that is all of them were from the father’s side, then the grandfather takes as much as the brother does. The grandmother also takes as much as the sister does.  They shall share the estate according to the rule “one share of the male equals that of two females.”

            If they were together and all of them were from the mother’s side, then they shall share the estate equally for a male equal share as the female.

            If they were together but they differed in their relationship to the deceased;  such as the case where the grandfather and the grandmother were from the mother’s side while the brothers and sisters were from the two parents’ side or from the father’s side, then the grandfather and/or the grandmother shall take the third while the brothers and sisters take the two thirds.

            If the grandparents were from father’s side or the brothers were from the mother’s side, then for the one brother or the one sister the sixth.  If the brothers from the mother’s side were more than one, then they shall share the third equally bwtween all of them males and females.  The remainder goes to the grandfather or the grandmother or both, they share it unequally “one share of the male equals that of two females.”

            The children of the brothers and sisters --from either side—even if they were lowered, would have the same status as their parents in case of the later’s absence.  They will share the estate with the grandfathers and with the grandmother –from either side—and each of them will take the share of the one who is the cause of the relationship.



Inheritance Of The Paternal And Maternal Uncles



            Jurists of the four Sunni schools of law say:  paternal aunts from either side, Paternal uncle from the mother’s side, maternal aunts and uncles from either side do not inherit along with oaternal uncles from the two parent’s side or from the father’s side.  They also would not inherit along with thier son’s [They will not inherit along with the son’s of the paternal uncle especially.  The existence of the  daughters of the paternal uncle with the sons of the paternal uncle will not have any effect.  For this reason, jurists of the four agree that if a deceased is survived by a son of a paternal uncle from the two parents or from the father’s side, and if there is a sister from his mother’s father’s side, then he alone will take the entire estate.] If there exists a paternal uncle from the two parents’ side or from the father’s side, or the son of either of the parents or the son of one of the parents, then all of them will be barred from inheritance because they are of Dhawee al-Arhaam category. While he is an agnate.  According to them, an agnate is favored (in inheritance) over the Dhawee al-Rahim.  We have presented that before many times.

            However, The paternal uncle from two parents’ side inherits if there does not exist one from the brothers from two parents’ side or from the father’s side.  Or if there isn’t there any of their sons.  He does not inherit along with the sisters from two parents’ side or from the father’s side because these –though they are agnates—their rank is before the rank of the paternal uncle as agnate.

            The paternal uncle from the two parents’ side share inheriting the estate with the daughter and the mother because both inherit as residuaries while he inherits as agnate.  It is the rule that when the residuarues and the agnates are to share the inheritance, the residuary shall first take his share then whatever is left of the estate goes to the agnates.  In case there are no residuaries at all, the agnates shall take the entire estate.  Thus, if the paternal uncle from two parens’ side or from the father’s side or one of their sons are to share the estate with the daughter’s children or the children of the daughter of the son, then the paternal uncle or his son shall take the entire estate and nothing goes to the children of the daughter not even to the males amongst them according to the Four.  On the contrary, the Imámís award the entire estate to the daughter’s children and nothing goes to the paternal uncle.

            In case of absence of the paternal uncle from two parents’ side, the paternal uncle from the father’s side shall replace him.  If he does not exist either, then the paternal uncle’s son from the two parent’s side.  If he does not exist, then paternal uncle’s son from the father’s side.  As for the formula by which the paternal uncle from two parent’s side or whoever takes his place inherit, it is as we determined before;  he takes the entire estate if there are no residuaries, or take the remainder if there are residuaries.  In short, the paternal uncle from two parents’ side or from the father’s side is exactly like the brother from to parents’ side or from the father’s side in his absence.

            The closest paternal uncle is awarded first over the furthest paternal uncle.  That is;  the deceased’s paternal uncle is awarded before his father’s paternal uncle, the father’s paternal uncle is muqaddam over the grandfather’s paternal uncle, and the paternal uncle from two parents’ side is M over the paternal uncle from the father’s side.

            In case there is no paternal uncle from the two parents’ side and the paternal uncle from the father’s side and their children, then the estate goes to the paternal uncle from the mother’s side, to the paternal aunts from either side and to maternal uncles and aunts.  If one of them is to exist alone, the he shall inherit the entire estate.  If they exist all; then the relatives from the father’s side take two thirds while the relatives from the mother’s side take one third.  For instance, if there are a maternal uncle and a paternal aunt; the maternal uncle takes one third while the paternal aunt takes two thirds.  Maternal uncles and maternal aunts from the mother’s side shall divide the inheritance amongst them according to “one share of the male equals that of two females.” Rule.  Although the children of the brother from the mother side shall divide it such that fro the male as much as for the female [Sunni Jurists have discuused at length the issue of Dhawee al-Arhaam whom they considered as a third class after the residuaries and agnates.  They mentioned cases and situations that are hard to define and to understand.  For that, we sought to limit such discussion to the mention of this note to present the idea.  For further details, refer to al-Mughnee, vol. 6, second edition, and the Book al-Miraath fi al-Shari’ah al-Islamiyyah by al-Sa’eedi] (al-Miraath fi al-Shari’ah al-Islamiyyah by “abd al’Muta’aal al-Sa’eedi, section on Irth Dhawee al-Arhaam).

            Imámís say:  In case of the absence of the two parents, the children, and their children;  the brothers, sisters, and their children; and the drandfather and the grandmothers; then in such a case the estate should go the paternal uncles, paternal aunts, moternal uncles and maternal aunts from either side.  They may inherit separately or collectively and below you will find the summary.

            If there are only paternal uncles and paternal aunts and no one from the maternal uncles or from the maternal aunts, then one paternal uncle and for one paternal aunt will inherit the entire estate regardless of the paternal uncle being from the two parents’ side for the deceased, from the father’s side or from the mother’s side only.

            If there are more than one paternal uncle and more than one paternal aunt, and if they shared the same relationship to the deceased;

            They divide it unequally amongst themselves according to  “one share of the male equals that of two females” rule if they were all from the two parents’ side or from the father’s side.

            They divide it equally between themselves –males and females-- if they were all from the mother’s side.

            If the relationship linking them to the deceased were different as is the case where some of them were from the two parent’s side, and others from the father’s side oer the mother’s side, then the one related by the father only will be dropped because of the one related by the two parent.  Hence, the one related by the father only if there are no one who is related by the two parents whereby the paternal uncle and the paternal aunt from the father’s side take as much as that taken by the paternal uncle and paternal aunt from the two parents’ side.

            If the paternal uncles and paternal aunts from the two parents side or the father’s side are to inherit with paternal uncles and paternal aunts from the mother’s side, if one from the mother’s side he/she takes the sixth, if they are more than one from the mother’s side they all share the third and divide it amongst themselves equally –males and females.

            If the maternal uncles and maternal aunts are to exist and not the paternal uncles and paternal aunts, then if only one maternal uncle exists he shall take the entire estate—regardless of him being from the father’s side, the mother’s side or from both.  In case there are many maternal uncles and maternal aunts al of whom share the same relationship to the deceased as is the case if they were all from the two parents’ side, from the father’s side, or from the mother’s side, in which case they divide the estate equally sare of a male equal to that of a female.

            If they were to have different relationship to the deceased like if some were related from twp parents’ side, some from the father’s or mother’s side, then the one related from the father’s side will be dropped because of the one related from the two parents’ side.  If the maternal uncles and maternal aunts from two parents’ side or from the father’s side are to inherit along with maternal uncles and maternal aunts from the mother’s side, then one from the mother’s side takes the sixth, if more than one they take the third and divide it equally amongst themselves –males and females.  The remainder goes to the relatives from the two parents’ side or the father’s side who will divide it amongst themselves also equally –males and females.

            If the paternal uncle and the maternal uncle are to inherit together, the maternal uncle gets one third –regardless of him being one or more, male or female—and two thirds go to the paternal uncle- regardless of him being one or more, male or female.  maternal uncles shall share the third the same way they would share it if they were alone without the paternal uncles.  The paternal uncles also shall share the two thirds.

            In case of the absence of all the paternal uncles. paternal aunts, maternal uncles, and maternal aunts, their children will take their place; each of them --collectively or individually--  shall take the share of whom caused his relationship to the deceased.  If a paternal uncle has many children and another paternal uncle has has only one daughter, the daughter alone shall get the half while all the children of the other paternal uncle get just the other half.  The closest from each of the two categories will bar the the furthest from the same category or or from the other category.  For example, the son of the paternal uncle will not inherit with the paternal uncle nor with the maternal uncle except in the case of the son of the paternal uncle from the two parents’ side who will inherit the entire estate over the paternal uncle from the father’s side only.  The son of the maternal uncle will not inherit with the maternal uncle nor with the paternal uncle; hence if there are a son of a paternal uncle and a maternal uncle, then the entire estate goes to the maternal uncle.  However, if there are son of a maternal uncle and a paternal uncle, then the entire estate goes to the paternal uncle.

            The paternal uncles, paternal aunts, maternal uncles, and maternal aunts of the deceased are more entitled to inheritance than all uncles and aunts of the deceased’s father.  The decendents from one womb are more entitled than the decendents of a more distant womb; that is, if there are a son of a paternal uncle and a father’s paternal uncle, then the entire estate goes to the son of the paternal uncle.  Similarly, the son of a maternal uncle inherits every thing over the father’s maternal uncle.  That is so because of the rule “the closest then the closer.

            If the wife or the husband are to inherit with the paternal uncle and maternal uncle, then the wife or the husband shall inherit her or his upper share, and the maternal uncle --one or more, male or female-- gets one third, and the remainder goes to the paternal uncle -- one or more, male or female.  Therfore if there is any shortage, it would only effect the share of the paternal uncle in all cases where one of the spouses is to share the inheritance along with the paternal uncles and maternal uncles.  If a husband was to share with a maternal uncle or a maternal aunt and a paternal uncle or a paternal aunt, then the husband gets three sixth, the maternal uncle or the maternal aunt gets two sixth, and the paternal uncle or the paternal aunt gets one sixth.  If the wife was the one to share with them, the she gets (3/12) three twelvths, 4/12 for the maternal uncle, and the remainder(5/12) for the paternal uncle.

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