Which marriages let a spouse inherit

An irregular marriage gives nothing; a death-bed marriage gives everything. Where the contract itself was defective, there is no mutual inheritance at all — the Kuwaiti Mawsu’a states the rule and attributes it by name: “if the contract was irregular there is no mutual inheritance, even if they went on living as husband and wife until death — and this is the school of the imams Abu Hanifa, al-Shafi’i and Ahmad”. Ibn Qudama gives the reason for the Hanbalis in one line: an irregular marriage “is not a marriage in law”. But a marriage contracted by a person in a final illness is valid, and the new spouse inherits like any other: the same encyclopaedia records the majority — naming the Hanafis, the Shafi’is and the Hanbalis — holding that a sick man may marry whatever the law allows him, and that “once the validity of the marriage is established, so is the validity of the dower and the entitlement of each spouse to inherit from the other”. Ibn Qudama applies it to money: the sick man’s marriage is sound, his dower is a debt, and it ranks with his other debts. One Hanbali qualification is recorded: Ibn Muflih withholds the inheritance where the man married in his illness deliberately to cut down another heir’s share and the new wife admits that was the purpose.

Sources: 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) · al-Mawsu’a al-Fiqhiyya, entry “Nikah” sec. 23 (vol. 41 p. 351) — nikah al-marid: “fa-dhahaba jumhuru al-fuqaha’i wa-hum al-Hanafiyyatu wa’l-Shafi’iyyatu wa’l-Hanabilatu … ila annahu yajuzu li’l-maridi an yankiha jami’a ma ahalla Allahu ta’ala lahu”, on Surah an-Nisa 4:3 and the athar of ‘Abdullah b. Abi Rabi’a who married in his illness so that his new wife would share his other wives’ inheritance (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, entry “Nikah” sec. 23 cont. (vol. 41 p. 351) — the consequence the jumhur draw: “qala al-jumhur: wa-idha thabata sihhatu al-nikahi thabata ka-dhalika sihhatu al-sadaqi wa’stihqaqu kullin min al-zawjayni irtha al-akhar”; Ibn Muflih of the Hanbalis excepts a marriage contracted to injure another heir where the wife admits it; no difference whether it is the man or the woman who is ill (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, entry “Marad al-Mawt” sec. 21 (vol. 37 p. 22) — “dhahaba al-Hanafiyyatu wa’l-Shafi’iyyatu wa’l-Hanabilatu ila anna hukma al-zawaji fi hali maradi al-mawti wa’l-sihhati sawa’, min haythu sihhatu al-‘aqdi wa-tawrithu kulli wahidin min al-zawjayni sahibah”, citing Bada’i’ al-Sana’i’ 7/225 and al-Zayla’i (Hanafi), al-Umm 4/31 (Shafi’i), al-Mughni and al-Sharh al-Kabir (Hanbali). Sec. 22 (p. 22): a divorce in death-illness takes effect by agreement, but “ikhtalafu fi thubuti al-tawaruthi baynahuma ba’dah” (Ministry of Awqaf and Islamic Affairs, Kuwait) · Ibn Qudama, al-Mughni, Kitab al-Fara’id, mas’ala 4977 (vol. 6 p. 393) — “fa-amma al-nikahu al-fasidu, fa-la yathbutu bihi al-tawaruthu bayna al-zawjayn; li-annahu laysa bi-nikahin shar’iyy” (Ibn Qudama al-Maqdisi (d. 620 AH)) · Ibn Qudama, al-Mughni, mas’ala 5660 (vol. 7 p. 273) — “wa’l-sadaqu idha kana fi’l-dhimmati, fa-huwa dayn, idha mata man huwa ‘alayhi wa-‘alayhi daynun siwahu, qussima maluhu baynahum bi’l-hisas”; Ahmad on a sick man who marries in his illness owing debts and dies: what he left is divided between the creditors and the wife rateably, “wa-dhalika li-anna nikaha al-maridi sahih, wa’l-sadaqa dayn, fa-tasawa sa’ira al-duyun” (Ibn Qudama al-Maqdisi (d. 620 AH)) — each school separately attested at the page cited.

The opposite on both. On the irregular marriage the Malikis ask why it is irregular. If the defect is one all the schools agree on — a fifth wife while four subsist, a woman forbidden by fosterage — there is no inheritance either way, before or after the separation. But if the ground is one the schools dispute, and the Mawsu’a’s own example is a marriage contracted without a wali by an adult woman of sound mind, then a death before the marriage is annulled does carry inheritance, “because the marriage subsists on the view of those who hold it valid”. That sits on a general Maliki maxim the encyclopaedia states elsewhere: any marriage whose validity is genuinely disputed “is like a valid marriage as to prohibition and inheritance, and is dissolved by a divorce”. On the death-illness marriage the Malikis go the other way. Al-Dasuqi records the Maliki jurists as agreed that two people both in a feared final illness may not marry, and on the mashhur the bar applies where either of them is — “even if the heirs consent, or the sick person needs it, because of the prohibition on introducing an heir”. Such a marriage is annulled. If the sick husband dies first, the wife does not take an inheritance share; she takes, out of the one third, the lesser of the dower named and the dower of her equals.

Sources: 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) · al-Mawsu’a al-Fiqhiyya, entry “Nikah” sec. 23 cont. (vol. 41 p. 352) — the Maliki position: al-Dasuqi records that the Maliki jurists agree in forbidding the marriage where both parties are in a feared illness, and that on the mashhur it is forbidden where one is, “wa-in adhina al-warathatu awi’htaja al-maridu ilayhi li’l-nahyi ‘an idkhalihi warithan”; the marriage is annulled before or after consummation, and if the sick husband dies before the annulment the wife takes, out of the third of his estate, the lesser of the named mahr and the mahr al-mithl (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, entry “Nikah” sec. 23 end (vol. 41 p. 352) — if the sick party recovers, or a judge rules the marriage valid, the couple are left as they are; and Ibn Qudama is quoted for al-Zuhri and Yahya b. Sa’id, that where either party was in a feared illness at the contract “fa’l-nikahu fasidun la yatawarathani bihi”. Sources: al-Mudawwana 2/246-247, al-Sharh al-Saghir, Mawahib al-Jalil, al-Dasuqi 2/240, 276 (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, entry “Nikah” (vol. 41 p. 328) — the Maliki general rule, stated while working out nikah al-shighar: “kullu nikahin mukhtalafun fihi, wa-law kana hadha al-khilafu kharija al-madhhab, wa-law fi madhhabin inqarada idha kana qawiyyan fa-huwa ka’l-nikahi al-sahihi fi’l-tahrimi wa’l-irth, wa-faskhuhu bi-talaq” — so inheritance arises if one of them dies before the annulment, “amma idha mata ahaduhuma ba’da al-faskhi fa-la irth” (Ministry of Awqaf and Islamic Affairs, Kuwait) — Maliki rule and the maxim it rests on.