Fatwa No : 82600
A wife demanding her share of her husband’s property during his lifetime

A wife demanding her share of her husband’s property during his lifetime

Assalamu Alaikum wa Rahmatullahi wa Barakatuh! What do the respected scholars say regarding the following issue that I married a woman, and from her I had three sons and one daughter. After some time, my wife passed away. Two years later, I remarried, and from this second marriage, I have one daughter. Now, while I am still alive, my second wife insists on having my inheritance divided, and when I refuse, she threatens me in various ways. My question is: Am I obliged to distribute my property during my lifetime, or not? It should also be noted that I have one sister as well. In light of these heirs, how will my property be divided? Kindly provide me with a correct ruling. I currently own two houses: one belonged to my respected mother and the other to my father. My mother has already transferred her house into my name.

الجوابُ حامِدا ًو مُصلیِّا ً

Merely transferring something in name does not make a person its owner until actual and lawful possession is also given. Therefore, in the aforementioned case, if the house that the questioner’s late mother had transferred into his name was only done so on paper, then such a hiba (gift) is not valid in Islamic law. Rather, that house will continue to be regarded as the property of the mother, and after her death it must be distributed among all her heirs strictly according to the rules of inheritance. Now, if among the heirs of the late father and the late mother only two heirs remain namely, the questioner and his sister and no other heirs exist, then both of them will be entitled to the entire estate. After fulfilling the rights that precede inheritance, the estate should be divided into three shares: two shares for the questioner and one share for his sister. It should also be clarified that during a person’s lifetime, so long as they are in good health and not in a terminal illness, they remain the sole owner of their property. No one else has any right over it, and the owner has full discretion to manage or dispose of it as they wish. For this reason, it is not permissible for a wife or any other heir to demand distribution of inheritance during the lifetime of the owner, nor to compel him to divide it. Therefore, the questioner’s wife, by making an unlawful and false claim and by troubling and distressing her husband, is committing a grave sin. She must refrain from her wrongful demand and also seek her husband’s forgiveness for causing him unnecessary harm. However, if the questioner himself, willingly and without any compulsion, wishes to distribute his property during his lifetime, he is permitted to do so. The better method in this regard is that he should keep aside a reasonable portion for his remaining life, and then distribute the rest of his property among his children, wife, and sister, giving each of them proper ownership and possession, so that the division is valid in Islamic law.
If he wishes to give a little extra to any son or daughter due to their need, service, or piety, this is permissible, but he must not unjustly deprive any heir, as that is sinful. If he chooses to distribute equally among them, that is preferable and recommended.
In this case, the proper method would be that he first divide the estate into three shares, giving one share to his sister as her inheritance. From the remaining two shares, he should further divide them into eight equal parts: one part he may keep for himself, one part for his sister, one part for his current wife, one part for his daughter from the current marriage, one part for the daughter from his first marriage, and one part each for his sons. If any of his children are minors or incapable of managing their property, he may retain their share in trust until they are mature enough to take possession.

مأخَذُ الفَتوی

ففی الدر المختار: وقال على الفريضة الشرعية قسم على ذكورهم وإناثهم بالسوية هو المختار (4/ 444)۔
و في الدر المختار: و في الخانية لا بأس بتفضيل بعض الأولاد في المحبة لأنها عمل القلب، وكذا في العطايا إن لم يقصد به الإضرار، وإن قصده فسوى بينهم يعطي البنت كالابن عند الثاني وعليه الفتوى (5/ 696)-