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Fatwa CenterMan-made laws must not interfere with Islamic laws of inheritance
Question
Assalaamu alaykum. Please calculate the inheritance according to the following information:
- Does the deceased have male relatives who are entitled to inherit: (A full brother) Number 4 (A nephew from a full brother) Number 8
- Does the deceased have female relatives who are entitled to inherit: (A wife) Number 1 (A full sister) Number 2
- Additional information: I am preparing my will. I am married and have three stepsons (my wife's sons from a previous marriage). I have four living brothers and two living sisters. All have children. If my siblings die before I do, will their children (my nieces and nephews) be entitled to inherit from my estate? My wife is entitled to 25% of the estate. The laws in New York give her 100% of my house and pension funds, which may exceed 25% of the value of the estate. Is that acceptable in Islamic law? Thank you.
Answer
All perfect praise be to Allah, The Lord of the worlds. I testify that there is none worthy of worship except Allah and that Muhammad, sallallahu ‘alayhi wa sallam, is His slave and Messenger.
If the deceased left behind no other heirs entitled to inherit except a wife, four full brothers, two full sisters, and nephews from the full brother, the estate should be divided as follows:
The wife gets one fourth of the estate as a fixed share because he has no children. The remainder of the estate should be divided among the deceased's full brothers and sisters by virtue of Ta‘seeb (having a paternal relation with the deceased and not having an allotted share, and therefore they get what is left after the allotted shares have been distributed); the male gets twice the share of the female. The deceased nephews are not entitled to inherit anything in this case because of the existence of the full brother.
It is impermissible for the wife to take more than her fixed share and transgress against the shares of the other heirs under pretext of the law. Man-made laws do not make unlawful what is lawful or vice versa. The Prophet, sallallahu ‘alayhi wa sallam, said, "I am only a human being, and opponents come to me (to settle their disputes); perhaps some among you can present their case more eloquently than the other, whereby I assume that one is saying the truth and give a verdict in their favor. So if I give the right of a Muslim to another, it is nothing but a portion of Hellfire, so let him take it or leave it." [Al-Bukhaari and Muslim] Al-Bukhaari 
entitled the chapter wherein he cited this hadeeth: "Whoever is given the right of his brother by a judge must not take it; the judge's verdict does not make unlawful what is lawful nor makes lawful what is unlawful."
For more benefit, please refer to fatwa 126540.
If the deceased left behind no father, son, grandson (down to all levels), full brother, or half-brother on the father's side and had only a nephew (son of a full brother), then he is entitled to inherit because the son of the deceased's full brother is entitled to inherit provided that the deceased has left behind no father, son, grandson (down to all levels), full brother, or half-brother on the father's side. As long as none of these rightful heirs exists, the son of the deceased's full brother is entitled to inherit from his paternal uncle.
We have previously underlined in many fatwas that the ruling on the retirement pension differs according to the nature of the pension plan. In brief, if the pension was deducted from the employee's salaries and financial rights, it is considered a debt for which his employer is liable and it is the employee's personal property. Accordingly, it should be divided among the deceased's rightful heirs according to the inheritance laws of the Shariah. If the pension is a grant from the employer to the employee's dependents after his death, then it should be given to the beneficiaries whom the employer specified apart from anyone else. For more benefit, please refer to fatwa 90709.
Allah knows best.
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