A child in the womb when the deceased died

Reserve one child’s share, and take security from the heirs — that is what the school issues fatwa on. The Hanafi books carry three reports, and it is worth knowing all three because they are quoted against one another. Ibn al-Mubarak reports from Abu Hanifa that the share of four sons or four daughters is reserved, whichever is larger — the reasoning being that quadruplets are attested. Hisham reports the share of two. And al-Khassaf reports from Abu Yusuf the share of one son or one daughter, whichever is larger — and the Mawsu’a states that “this is what the fatwa is on”, because a single birth is what normally happens and rulings are built on the normal. On that report the judge takes a guarantor from the heirs in case more than one child is born. The other heirs are meanwhile given the least that can fall to them. There is a further Hanafi refinement from the jurists of Samarqand: if the birth is close, hold the division; if it is distant, do not, because holding it harms the remaining heirs — the line between near and distant being left to custom, and put by some at under a month. On the outer limit of pregnancy the Hanafis stand alone: two years, on the report from ‘A’isha.

Sources: al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “Irth” §114 — how much is reserved for an unborn heir: “uwqifa lahu ‘inda Abi Hanifata nasibu arba‘ati banina aw nasibu arba‘i banatin ayyuhuma akthar, wa yu‘ta baqiyyatu al-warathati aqalla al-ansiba’” — “wa huwa madhhabu al-Malikiyya, wa muqabilu al-asahhi ‘inda al-Shafi‘iyya; idh al-asahhu annahu la dabta lahu”; with the worked example (pregnant wife and two parents, 24 rising to a reserve of 16 if four daughters are supposed); and Muhammad’s view of three, or of two on another report from him and one of two from Abu Yusuf (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Irth” §§114–115 — “wa rawa al-Khassafu ‘an Abi Yusufa annahu yuqafu nasibu ibnin wahidin aw bintin wahidatin ayyuhuma akthar, wa ‘alayhi al-fatwa”, the judge taking a surety from the heirs against the birth of more than one; the Samarqand fatwa that division is suspended if the birth is near and not if it is distant; and “madhhabu al-imami Ahmad … annahu yuqafu li’l-hamli nasibu dhakarayni aw unthayayni ayyuhuma akthar”, with the rule that where the fixed shares exceed a third the females’ portion is the larger (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mabsut, Bab Mirath al-Haml — the three Hanafi reports worked through a case (husband, pregnant mother, brother): “‘ala riwayati Ibn al-Mubaraki al-hamlu bi-manzilati arba‘i akhawat, wa ‘ala riwayati Hishamin al-hamlu bi-manzilati ukhtayn … wa kadhalika ‘ala riwayati al-Khassaf”; the estate provisionally divided and the reserve held, “fa-in waladat ibnatan fa’l-mawqufu yakunu laha”, with the division undone or reduced if the birth falsifies the assumption; and “wa mata infasala al-hamlu mayyitan la yarithu idha infasala bi-nafsihi”, though a foetus expelled dead BY an assault is treated as one of the heirs, since the assailant owes the ghurra (Muhammad b. Ahmad al-Sarakhsi (d. c. 483 AH)) · al-Mawsu’a al-Fiqhiyya, “Haml” §7 — “akthar muddat al-haml”: “fa-qala al-Shafi‘iyyatu wa huwa zahiru al-madhhabi ‘inda al-Hanabilati wa qawlun ‘inda al-Malikiyya: inna akthara muddati al-hamli arba‘u sinin”, on Malik’s report of his neighbour, the wife of Muhammad b. ‘Ajlan, and on ‘Umar’s four-year term for the missing man’s wife; “wa qala al-Hanafiyyatu, wa huwa riwayatun ‘an Ahmad: inna aqsa muddati al-hamli sanatan”, on the report from ‘A’isha (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, in the survey of legally fixed periods immediately preceding §14 on the term of a truce — “fa-yara jumhuru al-fuqaha’i (al-Malikiyyatu wa’l-Shafi‘iyyatu wa’l-Hanabilatu fi asahhi al-riwayatayn) annaha arba‘u sanawat. Wa fi ra’yin li’l-Malikiyyati annaha khamsu sanawat. Wa yara al-Hanafiyyatu, wa huwa riwayatun fi madhhabi al-Hanabilati, annaha sanatan” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mughni, Kitab al-Fara’id, mas’ala 4967, “fasl: fi mirathi al-haml” — “idha mata al-insanu ‘an hamlin yarithuhu, wuqifa al-amru hatta yatabayyan”, and if the heirs demand division “lam yu‘tu kulla al-mali, bi-ghayri khilaf” — one not diminished by the child takes his whole share, one diminished takes the least that can fall to him, one the child might exclude takes nothing; as for those who share with the child, “fa-aktharu ahli al-‘ilmi qalu: yuqafu li’l-hamli shay’un wa yudfa‘u ila shuraka’ihi al-baqi. Wa bi-hadha qala Abu Hanifata wa ashabuhu” … “wa’l-mashhuru ‘anhu [al-Shafi‘i] annahu la yudfa‘u ila shuraka’ihi shay’un; li-anna al-hamla la hadda lahu” (Ibn Qudama al-Maqdisi (d. 620 AH)) — the Mawsu’a’s Hanafi sections (footnoted to al-Sirajiyya), read against al-Sarakhsi’s own chapter on the unborn child’s inheritance.

Suspend the division altogether until the child is born. Khalil’s text, as al-Dardir reads it, is that the division of the estate is stayed where one of the heirs is an unborn child — not merely that a reserve is set aside — because there is a threefold uncertainty: whether the pregnancy will produce an heir at all, whether it is one child or several, and whether it is male, female or both. Even the heirs whose entitlement is certain are not paid early. al-Dardir gives the reason for treating this differently from a missing heir: a pregnancy is normally short, so the estate is unlikely to change in the meantime, whereas the wait for a missing man is long and the estate would be at risk. al-Dasuqi confirms that suspending the division “is the well-known position of the school”, and records Ashhab’s dissent — that the lower of the two possible shares should be paid out at once — together with the objection that killed it: the estate might be destroyed before the birth, so that one heir has been paid and the rest have not, which is a wrong that cannot be reversed, because she will say she took it lawfully. He adds that the suspension covers bequests as well as inheritance shares, and that if the heirs go ahead and divide anyway, leaving the child the more generous of its two shares, and what they left is then lost, the child has recourse against whichever of them is solvent.

Sources: al-Sharh al-Kabir li’l-Dardir with Hashiyat al-Dasuqi, [Mawani‘ al-Mirath] — one page carrying three Maliki rules: no inheritance for “man juhila ta’akhkhuru mawtihi”; “wa waqafa al-qasma li’l-haml”, the whole division suspended until birth (al-Dasuqi: “wa ma dhakarahu al-musannifu min waqfi al-qasmi huwa al-mashhuru min al-madhhab, wa qala Ashhab: yata‘ajjalu adna al-sahmayn”); and “wa waqafa malu al-mafqudi li’l-hukmi bi-mawtihi ba‘da zamani al-ta‘mir … hal huwa sab‘una sanatan aw khamsun wa sab‘una aw thamanun”, with the missing man reckoned both alive and dead and “u‘tiya al-warithu ghayru al-mafqudi aqalla nasibihi wa wuqifa al-mashkuku fih” (Ahmad al-Dardir (d. 1201 AH) with Muhammad b. Ahmad al-Dasuqi (d. 1230 AH)) · al-Mawsu’a al-Fiqhiyya, “Haml” §7 — “akthar muddat al-haml”: “fa-qala al-Shafi‘iyyatu wa huwa zahiru al-madhhabi ‘inda al-Hanabilati wa qawlun ‘inda al-Malikiyya: inna akthara muddati al-hamli arba‘u sinin”, on Malik’s report of his neighbour, the wife of Muhammad b. ‘Ajlan, and on ‘Umar’s four-year term for the missing man’s wife; “wa qala al-Hanafiyyatu, wa huwa riwayatun ‘an Ahmad: inna aqsa muddati al-hamli sanatan”, on the report from ‘A’isha (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, in the survey of legally fixed periods immediately preceding §14 on the term of a truce — “fa-yara jumhuru al-fuqaha’i (al-Malikiyyatu wa’l-Shafi‘iyyatu wa’l-Hanabilatu fi asahhi al-riwayatayn) annaha arba‘u sanawat. Wa fi ra’yin li’l-Malikiyyati annaha khamsu sanawat. Wa yara al-Hanafiyyatu, wa huwa riwayatun fi madhhabi al-Hanabilati, annaha sanatan” (Ministry of Awqaf and Islamic Affairs, Kuwait) — al-Dardir with al-Dasuqi directly; see the NOTES for a discrepancy with the Mawsu’a’s attribution.

No fixed number — and therefore those who share with the child get nothing yet. The Shafi’i rule is stated as a maxim: where a pregnancy is left which will inherit, or may inherit, “one acts on the most cautious footing, both for the child and for everyone else”. Worked out, that means three things. If there is no heir but the unborn child, or an heir whom the child might exclude, the whole estate is held. If an heir is not excluded and has a fixed Qur’anic fraction, he is paid it — but calculated with ‘awl where ‘awl is possible, so a pregnant widow with the deceased’s two parents takes an eighth reduced on a base of 27 rather than 24, on the possibility that the child is two daughters. (This is the famous Minbariyya problem, put to ‘Ali mid-sermon, to which he answered without stopping: “the woman’s eighth has become a ninth”.) And if an heir has no fixed fraction — the deceased’s other children, for instance — he receives nothing at all for the time being. al-Shirbini gives the reason expressly: “on the basis that the unborn child is not measured by any number, and that is the sound view, because it cannot be fixed” — al-Shafi’i having recorded a shaykh of the Yemen who told him of repeated births of five, and al-Mawardi a case of seven. Ibn Qudama reports the same as the well-known position from al-Shafi’i. The condition for taking is a live birth within a period in which the child is known to have existed at the death — and the school’s outer limit of pregnancy is four years.

Sources: Mughni al-Muhtaj, Kitab al-Fara’id — the unborn heir: “fa-in infasala hayyan li-waqtin yu‘lamu wujuduhu ‘inda al-mawti waritha wa illa fa-la”; if there is no heir but the child, or an heir the child might exclude, “wuqifa al-mal” entirely; an unexcluded heir with a fixed share is paid it “‘a’ilan in amkana al-‘awl” (the Minbariyya problem — 24 raised to 27, ‘Ali’s “sara thumnu al-mar’ati tus‘an”); and an heir with no fixed share, such as children, is given NOTHING for the time being — “bina’an ‘ala anna al-hamla la yataqaddaru bi-‘adadin, wa huwa al-sahihu li-‘adami indibatih” (al-Khatib al-Shirbini (d. 977 AH)) · Mughni al-Muhtaj, Kitab al-Fara’id — one page carrying the school’s rule for BOTH suspensions. The missing heir: “wa law mata man yarithuhu al-mafqudu waqafna hissatahu wa ‘amilna fi’l-hadirina bi’l-aswa’” — the whole estate suspended if he is the only heir, otherwise his share; with the three classes of present heir (one whom the missing man would exclude gets nothing, one whose share his life or death would reduce is reckoned on the worse assumption, one whose share is unaffected is paid). And the unborn heir: “wa law khallafa hamlan yarithu aw qad yarithu ‘umila bi’l-ahwati fi haqqihi wa haqqi ghayrihi” (al-Khatib al-Shirbini (d. 977 AH)) · al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “Irth” §114 — how much is reserved for an unborn heir: “uwqifa lahu ‘inda Abi Hanifata nasibu arba‘ati banina aw nasibu arba‘i banatin ayyuhuma akthar, wa yu‘ta baqiyyatu al-warathati aqalla al-ansiba’” — “wa huwa madhhabu al-Malikiyya, wa muqabilu al-asahhi ‘inda al-Shafi‘iyya; idh al-asahhu annahu la dabta lahu”; with the worked example (pregnant wife and two parents, 24 rising to a reserve of 16 if four daughters are supposed); and Muhammad’s view of three, or of two on another report from him and one of two from Abu Yusuf (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mughni, Kitab al-Fara’id, mas’ala 4967, “fasl: fi mirathi al-haml” — “idha mata al-insanu ‘an hamlin yarithuhu, wuqifa al-amru hatta yatabayyan”, and if the heirs demand division “lam yu‘tu kulla al-mali, bi-ghayri khilaf” — one not diminished by the child takes his whole share, one diminished takes the least that can fall to him, one the child might exclude takes nothing; as for those who share with the child, “fa-aktharu ahli al-‘ilmi qalu: yuqafu li’l-hamli shay’un wa yudfa‘u ila shuraka’ihi al-baqi. Wa bi-hadha qala Abu Hanifata wa ashabuhu” … “wa’l-mashhuru ‘anhu [al-Shafi‘i] annahu la yudfa‘u ila shuraka’ihi shay’un; li-anna al-hamla la hadda lahu” (Ibn Qudama al-Maqdisi (d. 620 AH)) · al-Mawsu’a al-Fiqhiyya, “Haml” §7 — “akthar muddat al-haml”: “fa-qala al-Shafi‘iyyatu wa huwa zahiru al-madhhabi ‘inda al-Hanabilati wa qawlun ‘inda al-Malikiyya: inna akthara muddati al-hamli arba‘u sinin”, on Malik’s report of his neighbour, the wife of Muhammad b. ‘Ajlan, and on ‘Umar’s four-year term for the missing man’s wife; “wa qala al-Hanafiyyatu, wa huwa riwayatun ‘an Ahmad: inna aqsa muddati al-hamli sanatan”, on the report from ‘A’isha (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, in the survey of legally fixed periods immediately preceding §14 on the term of a truce — “fa-yara jumhuru al-fuqaha’i (al-Malikiyyatu wa’l-Shafi‘iyyatu wa’l-Hanabilatu fi asahhi al-riwayatayn) annaha arba‘u sanawat. Wa fi ra’yin li’l-Malikiyyati annaha khamsu sanawat. Wa yara al-Hanafiyyatu, wa huwa riwayatun fi madhhabi al-Hanabilati, annaha sanatan” (Ministry of Awqaf and Islamic Affairs, Kuwait) — Mughni al-Muhtaj on al-Nawawi’s Minhaj, with the Mawsu’a and Ibn Qudama independently reporting the same as the school’s position.

Reserve the share of two. Ibn Qudama reports from Ahmad that “the share of two boys is held back if their inheritance is the greater, or of two girls if theirs is”, and the Mawsu’a gives this as Ahmad’s madhhab. Ibn Qudama then argues it, and the argument is the school’s own: “the birth of twins is a common, ordinary thing, so it is not permissible to divide their share, as with a single child; and more than two is rare, so nothing is held back for it, as for a fifth or a sixth”. The practical test he gives for which is larger is a good one: where the fixed shares in the problem come to more than a third of the estate, the females’ portion is the larger, because two daughters take two thirds and everyone abates together; where they come to less, the males’ is; and where the fixed shares are exactly a third — two parents and an unborn child — the two come out equal. Ibn Qudama also states as beyond dispute what the school shares with the others: the heirs may not be given the whole estate while the pregnancy is outstanding; whoever is not diminished by the child takes his full share, whoever is diminished takes the least that can fall to him, and whoever the child might exclude takes nothing. When the child is born, it takes what it is entitled to of the reserve; any surplus goes back to those entitled, and any shortfall is recovered from whoever is holding it. The school’s outer limit of pregnancy is four years on the apparent madhhab, with a narration from Ahmad of two.

Sources: al-Mughni, Kitab al-Fara’id, mas’ala 4967, “fasl: fi mirathi al-haml” — “idha mata al-insanu ‘an hamlin yarithuhu, wuqifa al-amru hatta yatabayyan”, and if the heirs demand division “lam yu‘tu kulla al-mali, bi-ghayri khilaf” — one not diminished by the child takes his whole share, one diminished takes the least that can fall to him, one the child might exclude takes nothing; as for those who share with the child, “fa-aktharu ahli al-‘ilmi qalu: yuqafu li’l-hamli shay’un wa yudfa‘u ila shuraka’ihi al-baqi. Wa bi-hadha qala Abu Hanifata wa ashabuhu” … “wa’l-mashhuru ‘anhu [al-Shafi‘i] annahu la yudfa‘u ila shuraka’ihi shay’un; li-anna al-hamla la hadda lahu” (Ibn Qudama al-Maqdisi (d. 620 AH)) · al-Mughni, mas’ala 4967 cont. — how much is reserved: “ruwiya ‘an Ahmada annahu yuqafu nasibu dhakarayni in kana mirathuhuma akthar, aw ibnatayni in kana nasibuhuma akthar”, the view also of Muhammad b. al-Hasan and al-Lu’lu’i; “wa qala Sharikun: yuqafu nasibu arba‘a” — “wa rawa Ibn al-Mubaraki hadha al-qawla ‘an Abi Hanifata, wa rawahu al-Rabi‘u ‘an al-Shafi‘i”; “wa qala al-Laythu wa Abu Yusufa: yuqafu nasibu ghulamin wa yu’khadhu daminun min al-waratha”; and Ibn Qudama’s own reasoning, “wiladatu al-taw’amayni kathirun mu‘tadun … wa ma zada ‘alayhima nadirun” (Ibn Qudama al-Maqdisi (d. 620 AH)) · al-Mawsu’a al-Fiqhiyya, “Irth” §§114–115 — “wa rawa al-Khassafu ‘an Abi Yusufa annahu yuqafu nasibu ibnin wahidin aw bintin wahidatin ayyuhuma akthar, wa ‘alayhi al-fatwa”, the judge taking a surety from the heirs against the birth of more than one; the Samarqand fatwa that division is suspended if the birth is near and not if it is distant; and “madhhabu al-imami Ahmad … annahu yuqafu li’l-hamli nasibu dhakarayni aw unthayayni ayyuhuma akthar”, with the rule that where the fixed shares exceed a third the females’ portion is the larger (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Haml” §7 — “akthar muddat al-haml”: “fa-qala al-Shafi‘iyyatu wa huwa zahiru al-madhhabi ‘inda al-Hanabilati wa qawlun ‘inda al-Malikiyya: inna akthara muddati al-hamli arba‘u sinin”, on Malik’s report of his neighbour, the wife of Muhammad b. ‘Ajlan, and on ‘Umar’s four-year term for the missing man’s wife; “wa qala al-Hanafiyyatu, wa huwa riwayatun ‘an Ahmad: inna aqsa muddati al-hamli sanatan”, on the report from ‘A’isha (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, in the survey of legally fixed periods immediately preceding §14 on the term of a truce — “fa-yara jumhuru al-fuqaha’i (al-Malikiyyatu wa’l-Shafi‘iyyatu wa’l-Hanabilatu fi asahhi al-riwayatayn) annaha arba‘u sanawat. Wa fi ra’yin li’l-Malikiyyati annaha khamsu sanawat. Wa yara al-Hanafiyyatu, wa huwa riwayatun fi madhhabi al-Hanabilati, annaha sanatan” (Ministry of Awqaf and Islamic Affairs, Kuwait) — al-Mughni mas’ala 4967, with the Mawsu’a reporting the same as Ahmad’s madhhab.