Does a divorced spouse inherit?

She inherits, but only until the ‘idda ends. The Hanafis give the irrevocably divorced wife her share where the divorce was pronounced in a death-illness, on four conditions: the divorce was not at her request, he died of that same illness before her ‘idda expired, she was qualified to inherit when he divorced her, and she remained qualified until he died. If she dies first he takes nothing from her — the encyclopaedia puts it as “giving effect to his evil intention”: by divorcing her irrevocably he threw away his own right. Ibn Qudama records the same limit from the other side, listing “Abu Hanifa and his companions” among those who say she does not inherit once the ‘idda has run, one reason being that allowing it would let more than four wives inherit from one man.

Sources: al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “‘Idda” sec. 64, “al-irthu fi’l-‘idda” (vol. 29 p. 354) — “dhahaba al-fuqaha’u ila anna al-mu’taddata min talaqin raj’iyyin idha matat, aw mata zawjuha wa-hiya fi’l-‘iddati waritha ahaduhuma al-akhara li-baqa’i athari al-zawjiyya”; and that a woman irrevocably divorced while her husband was in health does not inherit, with or without her consent; then “wa’khtalafa al-fuqaha’u fi irthi al-mu’taddati min talaqin ba’inin fi halati maradi al-mawti wa-huwa ma yusammihi al-fuqaha’u talaqa al-farr”, the Hanafis and the old Shafi’i position giving her the inheritance (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, entry “‘Idda” sec. 64 cont. (vol. 29 p. 354) — the Hanafi conditions (the divorce not at her wish; he dies of that illness before the ‘idda expires; she was and remains qualified to inherit) and that he does not inherit her, “‘amalan bi-qasdihi al-sayyi’”; then “wa-yara al-Malikiyyatu anna al-mutallaqata al-ba’ina tarithu zawjaha … hatta wa-lawi’nqadati al-‘iddatu wa-tazawwajat ghayrahu wa-law azwajan”; and “wa-yara al-Shafi’iyyatu fi’l-qawli al-jadidi annaha la tarithu li’nqita’i al-zawjiyya” (Ministry of Awqaf and Islamic Affairs, Kuwait) · Ibn Qudama, al-Mughni, Kitab al-Fara’id (vol. 6 p. 395) — the flight divorce, with the schools named. Divorce in health followed by the expiry of the ‘idda: “lam yatawaratha IJMA’AN”. Divorce in a feared illness followed by his death in it during her ‘idda: “warithathu wa-lam yarithha in matat”, from ‘Umar and ‘Uthman, and held by “Abu Hanifata fi ahli al-‘Iraq, wa-Malikin fi ahli al-Madina” and “qawlu al-Shafi’iyyi fi’l-qadim”; against “qawlu al-Shafi’iyyi al-jadid” that a definitively divorced woman does not inherit. The proof is ‘Uthman’s award of an inheritance to Tumadir bint al-Asbagh from ‘Abd al-Rahman b. ‘Awf, and the principle that a man who forms a corrupt design on the inheritance “is met with the opposite of his design, like the killer”. Then: “fa’l-mashhuru ‘an Ahmada annaha tarithuhu fi’l-‘iddati wa-ba’daha ma lam tatazawwaj”, also ascribed to “Malikin fi ahli al-Madina”; and a report from Ahmad the other way, “wa-hadha qawlu ‘Urwata, wa-Abi Hanifata wa-ashabihi, wa-qawlu al-Shafi’iyyi al-qadim”, confining it to the ‘idda; and “wa-in tazawwajati al-mabtutatu lam tarithhu” (Ibn Qudama al-Maqdisi (d. 620 AH)) · al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “Irth” sec. 38 (vol. 3 p. 37) — the two conditions of inheriting as a spouse. First: “an takuna al-zawjiyyatu sahiha .. fa-in kana al-‘aqdu fasidan fa-la tawaruth wa-law istamarrat al-‘ishratu bi-muqtadahu ila al-wafat, wa-hadha madhhabu al-a’immati Abi Hanifata wa’l-Shafi’iyyi wa-Ahmad”, followed by Malik’s contrary rule turning on whether the ground of invalidity is agreed or disputed (the example given is a marriage with no wali for an adult woman of sound mind). Second: that the marriage subsist at death in fact or in law — the latter covering a wife in the ‘idda of a revocable divorce (Ministry of Awqaf and Islamic Affairs, Kuwait) — the school and its conditions, separately attested.

She inherits for ever — even if she has married again. The Maliki position is the widest of the four. The wife irrevocably separated in a feared final illness — by divorce, by li’an or by khul’ — inherits from the husband who dies in that illness, “whether or not the divorce was with her consent, and even if the ‘idda has expired and she has married another, or several”. He does not inherit from her if she dies first, even if she too was ill, “because he is the one who removed himself and forfeited what he was entitled to, since the marital tie was in his hand”. Ibn Qudama, writing four centuries earlier, already put “Malik among the people of Madina” with those who let her inherit after the ‘idda so long as she had not remarried; the later school as al-Dasuqi and al-Zarqani state it goes further still.

Sources: al-Mawsu’a al-Fiqhiyya, entry “‘Idda” sec. 64 cont. (vol. 29 p. 354) — the Hanafi conditions (the divorce not at her wish; he dies of that illness before the ‘idda expires; she was and remains qualified to inherit) and that he does not inherit her, “‘amalan bi-qasdihi al-sayyi’”; then “wa-yara al-Malikiyyatu anna al-mutallaqata al-ba’ina tarithu zawjaha … hatta wa-lawi’nqadati al-‘iddatu wa-tazawwajat ghayrahu wa-law azwajan”; and “wa-yara al-Shafi’iyyatu fi’l-qawli al-jadidi annaha la tarithu li’nqita’i al-zawjiyya” (Ministry of Awqaf and Islamic Affairs, Kuwait) · Ibn Qudama, al-Mughni, Kitab al-Fara’id (vol. 6 p. 395) — the flight divorce, with the schools named. Divorce in health followed by the expiry of the ‘idda: “lam yatawaratha IJMA’AN”. Divorce in a feared illness followed by his death in it during her ‘idda: “warithathu wa-lam yarithha in matat”, from ‘Umar and ‘Uthman, and held by “Abu Hanifata fi ahli al-‘Iraq, wa-Malikin fi ahli al-Madina” and “qawlu al-Shafi’iyyi fi’l-qadim”; against “qawlu al-Shafi’iyyi al-jadid” that a definitively divorced woman does not inherit. The proof is ‘Uthman’s award of an inheritance to Tumadir bint al-Asbagh from ‘Abd al-Rahman b. ‘Awf, and the principle that a man who forms a corrupt design on the inheritance “is met with the opposite of his design, like the killer”. Then: “fa’l-mashhuru ‘an Ahmada annaha tarithuhu fi’l-‘iddati wa-ba’daha ma lam tatazawwaj”, also ascribed to “Malikin fi ahli al-Madina”; and a report from Ahmad the other way, “wa-hadha qawlu ‘Urwata, wa-Abi Hanifata wa-ashabihi, wa-qawlu al-Shafi’iyyi al-qadim”, confining it to the ‘idda; and “wa-in tazawwajati al-mabtutatu lam tarithhu” (Ibn Qudama al-Maqdisi (d. 620 AH)) — the developed school position and its earlier report.

She does not inherit. On the jadid — the position al-Shafi’i settled on in Egypt, and the one the school follows — the irrevocably divorced wife takes nothing, “because the marriage has been severed”, and because if she had died first he would not have inherited from her by agreement. Ibn Qudama reports the same as “the new position of al-Shafi’i”, with the reasoning that the causes of inheritance are confined to kinship, marriage and clientage, and she now has none of them. The school did not always say so: al-Shafi’i’s earlier Iraqi position, the qadim, gave her the inheritance, and is recorded in three forms — until the ‘idda expires, until she remarries, or for ever — hedged with conditions that she be an heir, that she did not choose the separation, that the illness was a feared one he died of, that the separation was a divorce and not li’an or annulment, and that the divorce was immediate rather than suspended. That is the school’s history, not its operative rule.

Sources: al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “‘Idda” sec. 64, “al-irthu fi’l-‘idda” (vol. 29 p. 354) — “dhahaba al-fuqaha’u ila anna al-mu’taddata min talaqin raj’iyyin idha matat, aw mata zawjuha wa-hiya fi’l-‘iddati waritha ahaduhuma al-akhara li-baqa’i athari al-zawjiyya”; and that a woman irrevocably divorced while her husband was in health does not inherit, with or without her consent; then “wa’khtalafa al-fuqaha’u fi irthi al-mu’taddati min talaqin ba’inin fi halati maradi al-mawti wa-huwa ma yusammihi al-fuqaha’u talaqa al-farr”, the Hanafis and the old Shafi’i position giving her the inheritance (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, entry “‘Idda” sec. 64 cont. (vol. 29 p. 354) — the Hanafi conditions (the divorce not at her wish; he dies of that illness before the ‘idda expires; she was and remains qualified to inherit) and that he does not inherit her, “‘amalan bi-qasdihi al-sayyi’”; then “wa-yara al-Malikiyyatu anna al-mutallaqata al-ba’ina tarithu zawjaha … hatta wa-lawi’nqadati al-‘iddatu wa-tazawwajat ghayrahu wa-law azwajan”; and “wa-yara al-Shafi’iyyatu fi’l-qawli al-jadidi annaha la tarithu li’nqita’i al-zawjiyya” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, entry “‘Idda” (vol. 29 p. 355) — the conditions attached to the old Shafi’i view, and then: “wa-yara al-Hanabilatu anna al-mu’taddata min al-talaqi al-ba’ini in kana fi’l-maradi al-makhufi thumma mata al-zawju min maradihi dhalika fi ‘iddatiha warithathu bi-shartI an la yakuna al-talaqu fi’l-maradi bi-raghbatiha awi khtiyariha, wa-lam yarithha in matat, wa’l-mashhuru ‘an Ahmada annaha tarithuhu ba’da al-‘iddati aydan ma lam tatazawwaj”, with a further report from Ahmad the other way; footnoted to al-Mughni (Ministry of Awqaf and Islamic Affairs, Kuwait) · Ibn Qudama, al-Mughni, Kitab al-Fara’id (vol. 6 p. 395) — the flight divorce, with the schools named. Divorce in health followed by the expiry of the ‘idda: “lam yatawaratha IJMA’AN”. Divorce in a feared illness followed by his death in it during her ‘idda: “warithathu wa-lam yarithha in matat”, from ‘Umar and ‘Uthman, and held by “Abu Hanifata fi ahli al-‘Iraq, wa-Malikin fi ahli al-Madina” and “qawlu al-Shafi’iyyi fi’l-qadim”; against “qawlu al-Shafi’iyyi al-jadid” that a definitively divorced woman does not inherit. The proof is ‘Uthman’s award of an inheritance to Tumadir bint al-Asbagh from ‘Abd al-Rahman b. ‘Awf, and the principle that a man who forms a corrupt design on the inheritance “is met with the opposite of his design, like the killer”. Then: “fa’l-mashhuru ‘an Ahmada annaha tarithuhu fi’l-‘iddati wa-ba’daha ma lam tatazawwaj”, also ascribed to “Malikin fi ahli al-Madina”; and a report from Ahmad the other way, “wa-hadha qawlu ‘Urwata, wa-Abi Hanifata wa-ashabihi, wa-qawlu al-Shafi’iyyi al-qadim”, confining it to the ‘idda; and “wa-in tazawwajati al-mabtutatu lam tarithhu” (Ibn Qudama al-Maqdisi (d. 620 AH)) · al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “Irth” sec. 38 (vol. 3 p. 37) — the two conditions of inheriting as a spouse. First: “an takuna al-zawjiyyatu sahiha .. fa-in kana al-‘aqdu fasidan fa-la tawaruth wa-law istamarrat al-‘ishratu bi-muqtadahu ila al-wafat, wa-hadha madhhabu al-a’immati Abi Hanifata wa’l-Shafi’iyyi wa-Ahmad”, followed by Malik’s contrary rule turning on whether the ground of invalidity is agreed or disputed (the example given is a marriage with no wali for an adult woman of sound mind). Second: that the marriage subsist at death in fact or in law — the latter covering a wife in the ‘idda of a revocable divorce (Ministry of Awqaf and Islamic Affairs, Kuwait) — the settled position, with the abandoned one recorded.

She inherits during the ‘idda and after it, until she remarries. The Hanbalis give her the share where the irrevocable divorce came in the feared illness and the husband then died of it, on condition the divorce was not at her wish or choice; and he does not inherit from her if she dies. On how long it lasts, Ibn Qudama states the school’s settled view outright: “the well-known position from Ahmad is that she inherits from him during the ‘idda and after it, so long as she has not married” — and quotes Abu Bakr for the point that Ahmad’s word did not vary on it in the case of a wife who had been taken in. The reason given is that the ground of her right is his flight from her inheritance, and that does not disappear when the ‘idda runs out. A second report from Ahmad limits her to the ‘idda, and the encyclopaedia records that too; once she remarries, she takes nothing on any report.

Sources: al-Mawsu’a al-Fiqhiyya, entry “‘Idda” (vol. 29 p. 355) — the conditions attached to the old Shafi’i view, and then: “wa-yara al-Hanabilatu anna al-mu’taddata min al-talaqi al-ba’ini in kana fi’l-maradi al-makhufi thumma mata al-zawju min maradihi dhalika fi ‘iddatiha warithathu bi-shartI an la yakuna al-talaqu fi’l-maradi bi-raghbatiha awi khtiyariha, wa-lam yarithha in matat, wa’l-mashhuru ‘an Ahmada annaha tarithuhu ba’da al-‘iddati aydan ma lam tatazawwaj”, with a further report from Ahmad the other way; footnoted to al-Mughni (Ministry of Awqaf and Islamic Affairs, Kuwait) · Ibn Qudama, al-Mughni, Kitab al-Fara’id (vol. 6 p. 395) — the flight divorce, with the schools named. Divorce in health followed by the expiry of the ‘idda: “lam yatawaratha IJMA’AN”. Divorce in a feared illness followed by his death in it during her ‘idda: “warithathu wa-lam yarithha in matat”, from ‘Umar and ‘Uthman, and held by “Abu Hanifata fi ahli al-‘Iraq, wa-Malikin fi ahli al-Madina” and “qawlu al-Shafi’iyyi fi’l-qadim”; against “qawlu al-Shafi’iyyi al-jadid” that a definitively divorced woman does not inherit. The proof is ‘Uthman’s award of an inheritance to Tumadir bint al-Asbagh from ‘Abd al-Rahman b. ‘Awf, and the principle that a man who forms a corrupt design on the inheritance “is met with the opposite of his design, like the killer”. Then: “fa’l-mashhuru ‘an Ahmada annaha tarithuhu fi’l-‘iddati wa-ba’daha ma lam tatazawwaj”, also ascribed to “Malikin fi ahli al-Madina”; and a report from Ahmad the other way, “wa-hadha qawlu ‘Urwata, wa-Abi Hanifata wa-ashabihi, wa-qawlu al-Shafi’iyyi al-qadim”, confining it to the ‘idda; and “wa-in tazawwajati al-mabtutatu lam tarithhu” (Ibn Qudama al-Maqdisi (d. 620 AH)) · Ibn Qudama, al-Mughni, Kitab al-Fara’id, fasl on divorce (vol. 6 p. 394) — “idha tallaqa al-rajulu imra’atahu talaqan yamliku raj’ataha fi ‘iddatiha, lam yasqut al-tawaruthu baynahuma, ma damat fi’l-‘idda, sawa’un kana fi’l-maradi awi’l-sihha. BI-GHAYRI KHILAFIN NA’LAMUHU”, reported from Abu Bakr, ‘Umar, ‘Uthman, ‘Ali and Ibn Mas’ud — because a revocably divorced wife is still a wife whom he may take back without her consent, without a guardian, witnesses or a new dower (Ibn Qudama al-Maqdisi (d. 620 AH)) — the mashhur, with the contrary report recorded.