Inheritance of Joint Property by Surviving Spouse

By Mufti Ebrahim Desai
Posted: 27 Safar 1424, 17 April 2004

Q.) What is the ruling according to Islamic Shariah in the following cases.

1. (a) A husband and wife own a house jointly. They both have invested in it in certain ratio (say, 40 % vs. 60 %). They do not have any children at this time. Husband has only one brother and wife has no brother or sister. If they are living in that house, then can the husband write an Islamic Will (wasiyyah or living trust in the USA) in which he says that after his death, the entire property (100 % ownership) will belong to his wife.

1. (b) Similarly if they are renting the house to someone, then also can husband write the above WILL.

2. Similarly, under the same situations ( 1a & b), can wife write the exact same WILL to have husband the 100 % ownership of the house in case of her death.

3. If the answer to Q, 1 and 2 is no, then how would the house and other assets (if any) including cash will be divided when one of them passes away and the other is alive?

A.) 1.(A) The husband will leave behind a wife and a brother if he dies, thus it will not be permissible to make a bequest for the wife, in the presence of another heir viz the brother. (Shaami Vol.6 Pg.649)

(B) The answer would be the same, if the house is being rented out.

2.(A & B) As the wife has no other heir except the husband, thus it would be permissible for her to bequest her entire estate to her husband. (Shaami Vol.6 Pg.656).

3.If the wife dies first, then half her estate will go to her husband, while the other half will go to her zawil arhaam (other relatives who don't normally inherit). However if the wife bequests her entire estate to him, then he will inherit it all. (Ibid)

If the husband dies, then the wife will inherit quarter of his estate, while three quarter will go to his brother. This means that if the husbands share in the home is 40%, then the brother will then own three quarters of the husband's share, ie. 30%. Same with his other wealth.

If the husband wants to ensure that his wife has a home after his death, then he could sell his share of the home to her, for a nominal sum while he is alive and should get witnesses to it, to prevent arguments later on. In this case, if he passes away, she will have the house, in addition to a quarter of any other wealth he leaves behind, while if she passes away first and had bequested all her property to him, then he will become the owner of the entire house as well as the rest of her estate.

However he should bear in mind that once he sells the house to her, she may do as she pleases with it. Also in the case of divorce, the entire house will then belong to her.

And Allah Ta'ala Knows Best