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Fatwa CenterDividing one's property among his wives and children in his life
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 7 - Does the deceased have female relatives who are entitled to inherit: (A daughter) Number 1 (A wife) Number 2 - Additional information: The person is alive, but due to his second marriage (he has two boys from the second), which was revealed after 13 years to the first wife, there is a clash ongoing and families have seeked the assistance of the court, but even after four years, no solution has been found. The person now decided to divide the property amongst all and hence the court case would be ended.The person is asking whether as per the sharia he should get one-third and the rest can be divided. Please advise.
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 
is His slave and Messenger.
As long as that man is still alive, then dividing his property while he is still alive is not considered a division of inheritance but a gift from him. He has the choice; he may keep one-third, two-thirds, or more, or less, and he does not have to keep a certain proportion from it, but he must be just when gifting his male and female children, as the Prophet said, “Fear Allaah and be just when gifting your children.” [Al-Bukhari and Muslim]
Justice is achieved by giving the female the same amount as the male; or by giving the female half of what he gives to the male, just as in the case of inheritance. The scholars have two opinions about this, but we at islamweb adopt the first view, which is also the view of the Imaams Maalik, Abu Haneefah, Ash-Shaafi'i, and Ibn Al-Mubaarak. These scholars provided evidence from the hadeeth that was related by Muslim and says that Basheer ibn Sa’d, who was the father of An-Nu'maan ibn Basheer, wanted to favor some of his children over others and gifted one of them to the exclusion of others, so the Prophet said to him, “Would you be pleased that they would be equally dutiful to you.” He replied in the affirmative. Upon this, the Prophet said, “Then, do not do so (do not do such an act of giving to some children to the exclusion of the others).” The scholars said if the daughter is equal to the son as regards dutifulness, then the same thing applies to gifting her.
They also provided evidence of the hadeeth narrated by Ibn ‘Abbaas 
in which the Prophet said, “Be equitable in whatever you give to your children, for if I had to prefer some over the others, I would have preferred women.” [Sa’eed ibn Mansoor and al-Bayhaqi] Ibn Hajar said, “Its chain of narrators is hasan (good).”
Because it is a donation while the person is still alive, the male and female are equal in this regard, just like the case of spending and clothing.
He should also be just between his two wives when gifting them, so he should not gift one of them more than the other one because Allaah commanded justice in general; Allaah says (what means): {Indeed, Allaah orders justice.} [Quran 16:90]
Some jurists hold the view that a husband must be just in gifting his wives in the same manner that he must be just between his children because of the general meaning of the hadeeth that reads, "When a husband has two wives and does not act justly between them [if he favors one of them over the other], he will come on the Day of Judgment with a side of his body leaning down (as a form of punishment for him)." [Abu Daawood - Al-Albaani graded it saheeh (sound)]
The Fiqh Encyclopedia reads, “Ibn Naafi’ said, ‘The husband must be just between his wives in what he gives them from his wealth after fulfilling his obligations towards each one of them.’”
Allaah knows best.
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