Enumerate and explain the main difference between the Sunni and Shia rules of inheritance. How can these differences be justified?

Question: Enumerate and explain the main difference between the Sunni and Shia rules of inheritance. How can these differences be justified? [BJS 1978]

Find the question and answer of Muslim Law only on Legal Bites. [Enumerate and explain the main difference between the Sunni and Shia rules of inheritance. How can these differences be justified?]

Answer

Sunni and Shia laws of inheritance are different in their foundational structure as well as detailed implications, though both are inspired by the Quranic verses of inheritance.

Shia law divides legal heirs into three basic classes. These classes thereafter determine the distribution of an estate among legal heirs and how to give preference to one legal heir over another. Appropriate appreciation of these classes helps one to understand the Shia law of inheritance as details of the system in one manner or another is linked to it. These classes are the following:

Class 1

(i) Parents, and

(ii) Children (male and female). The children also include their descendants how low so ever irrespective of the fact whether they are descendants of male or female children.

Class 2

(i) Grandparents (true or false) how high so ever, and

(ii) Brothers and sisters (full, consanguine, and uterine) and their descendants how low so ever irrespective of their gender.

Class 3

(i) Paternal uncles and aunts,

(ii) Maternal uncles and aunts, and

(iii) Their children how low so ever irrespective of their gender.

Once the heirs are divided into the above classes, there are two basic rules which need to be understood

1. Firstly, as long as an heir (or more than one) is present from class 1, no one will be entitled to inheritance from class 2: Similarly, if there is an heir (or more than one) from class 2, no will have anything from the class 3.

2. Secondly, within the same class there is no difference between male and female heirs except to the extent that a male heir will have a double share than that of a female heir.

Difference between Shia and Sunni Law

1. Shia law treats cognates and agnates equally when it comes to inheritance. Sunni law favours close kinship over distant kinship.

2. According to Shia law, class I heirs completely exclude class II and III heirs, while class II heirs completely exclude class three. The remoter is excluded from class III nears degree.

3. The doctrine of representation is not taken into account in both Shia and Sunni law. It is not possible for a person to inherit in the place of his or her father or mother. It is used in Shia law to determine the quantum of a person's share, while it is not used at all in Sunni law.

4. A daughter's daughter, as a uterine related, has no claim to inherit the property in Sunni law. She only receives it once all of the heirs have exhausted themselves. In Shia law, a daughter's daughter has the right to inherit her mother's portion.

5. When a son's children cohabit with a daughter's children, the son's children are entitled to 2/3rds of the property, while the daughter's children are entitled to 1/3rd of the property under Shia law. As long as the sharers and reliquaries remain depleted, the daughter's children are not entitled to a share under Sunni law.

6. The notion of primogeniture is partially accepted in Shia law, with the eldest son inheriting the sabre, Quran, and other vestments of his deceased father. Sunni law does not recognize it.

7. Under Shia law, the property between a half-brother by the same mother and the son of a full brother goes to the half-brother, whereas under Sunni law, the half-brother only gets 1/6th of the property and the rest goes to the full brother's son.

8. Under Shia law, paternal uncles receive double the shares as aunts, however, under Sunni law, the paternal uncles receive the entire estate and the aunts receive nothing.

9. The allocation of property is done according to per-stripe in Shia law and per-capita in Sunni law.

10. Females, regardless of how far away from the son they are, can inherit property with him under Shia law. Under Sunni law, the situation is the polar opposite.

11. Under Shia Law, if a woman gets divorced by her husband during his illness and he subsequently dies of the disease, the woman will retain her inheritance right for one year, whereas under Sunni Law, the woman will retain her inheritance right till the end of her probation period.

12. If a non-Muslim dies and leaves behind a Muslim and a non-Muslim heir, the Muslim heir will be given preference over the non-Muslim successor, despite the fact that the Muslim heir is distant in degree, whilst non-Muslims have no right to inherit under Sunni Law.

13. The doctrine of increase only applies to the daughter and sister in Shia law, whereas it applies to all sharers under Sunni law.

14. Only purposeful murderers are barred from inheriting property under Shia law, whereas everyone accused of murder is barred under Sunni law.

15. In the case of an illegitimate child, Shia law bans the kid from inheriting both the father's and mother's property, whereas Sunni law allows the illegitimate child to inherit only the mother's property. These heirs-father, mother, husband, and wife-are never excluded from the succession under Shia or Sunni law.

Now, for instance, descendants of a Sunni deceased's daughter are excluded from inheritance as per Sunni law as they are regarded as distant kindred whose right to inheritance will only be entertained in absence of the sharers and the residuary, while his son's descendants will be entitled to his estate as they are regarded as the sharer or the residuary. Shia law does not differentiate between descendants of son and daughter and they are placed in the same class.

When one descendant from the class is entitled, the other would also have his/her share. Similar to descendants of son and daughter, Sunni law divides descendants of brothers and sisters into the residuary and distant kindred respectively, while Shia law does not prefer males over females in these situations nor place their descendants in different classes.

An easy way to appreciate this divergence is to comprehend an important difference between Sunni and Shia laws. According to Sunni law, legal heirs are divided into three classes, i.e. the sharers, the residuary, and the distant kindred; while Shia law recognizes only two classes, i.e. the sharers and the residuary. There is no concept of distant kindred in Shia law. \

Most of those who are regarded as distant kindred in Sunni law relates to a deceased from his female descendants (e.g.daughter's children, son's daughter's children) or other female relatives (e.g. mother's father, mother's brother, and sister, sister's children, etc.). As Shia law places these females and their ascendants and descendants in the above-mentioned classes along with their male counterparts, there remains no need to have another class of legal heirs like the distant kindred in the Shia scheme of inheritance.

Another aspect we take into account while discussing Sunni law was distinguishing paternal and maternal grandfathers into true and false grandfathers. As is apparent from the above classification, there is no such distinction in Shia law. Both paternal and maternal grandfathers are placed in the same class.

The significance extended to the residuary in Sunni law is not visible as such in Shia law. Shia law has significantly reduced it by dividing the legal heirs into the above classes. For instance, a brother (one or more than one) is regarded as a residuary in Sunni law in absence of the deceased's son (including the son's male descendants) and the father. It means that if a Sunni person dies leaving behind a daughter and a brother, the daughter will have half as a sharer while the rest will be inherited by the brother as a residuary. If the same kind of situation arises with respect to a Shia person, the persons in class 1 will exclude those who are located in class 2. This implies that the daughter will have the first half as a sharer while another half will be given to her under the principle of Radd/return.

The rule propounded by Sunni law that the nearest in degree will exclude those who are linked to a deceased by more remote relations is shared by Shia law of inheritance. But the implications of this rule are quite different in both systems. For instance, a true grandfather of a remoter degree cannot be excluded by any grandmother of a nearer degree in Sunni law. It means that the grandfather's father cannot be excluded by the grandmother who is located a degree nearer to the deceased. In Shia law, the grandmother excludes the grandfather's father. The reason for this difference is that Shia law does not differentiate between males and females in excluding the remoter relations: female relatives are as effective in this regard as male relatives are in Sunni law.

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