Q. We are four brothers and three sisters. Our mother passed away and our father married another woman. Our father owns some real property, and two of his sons paid money to complete his building, with one providing more than the other. Our father decided to divide the property among his four sons only, excluding his daughters. When he married his second wife, he told her that she would not be having a share of the property, but she may have his pension. Later, my father excluded his youngest son from this division and disallowed him from even coming to the house because he married a woman my father disliked. Please comment.
(Name and address withheld)
A. The main problem in such cases is that people tend to look at what they have as their own property and think that they have absolute rights to do with it what they like. This may be the case in many societies, particularly in Western countries, but not under Islamic law. In Islam, whatever we have belongs to God. All our money, whether in cash or other possessions, including real property, belongs to Him. It is He who has given it to us, placing us in charge of it, and to Him it all belongs when we depart this life. Therefore, we do not have much say in how our property should be divided among our heirs. We do not even decide who our heirs are. God allows us to bequeath a portion of our property by will, but this portion must not exceed one-third. The Prophet tells us: “God has given you one-third of your property as a charity, i.e. sadaqah.” Consider carefully what this means: the money does not belong to us. God permits us to use it in a way that will bring us some reward after we die. Hence, it should go to beneficial purposes, such as gifts to poor relatives who are not our heirs, poor neighbors, charitable services, etc.
With inheritance, God determines who inherits and the shares they inherit. A Muslim cannot disinherit any of his heirs, but Islamic law may block the inheritance of any person for a specific reason, as in the case of a son declaring that he is no longer a Muslim and adopting a different religion. In this case, the rule that the followers of two different religions may not inherit each other applies.
When we look at this case, we may treat it in two ways. If the father is making the division now and allowing his sons to have the real property he is dividing among them, then he is contravening Islamic law by making gifts to some of his children and excluding others. Children must be treated fairly. If you make a gift to one child, you have to give all your children similar gifts. Boys and girls receive the same. There must be no distinction between them. When the Prophet was told by one of his companions that he gave a child a certain gift but did not give the others, he described his action as “injustice” and told him that he would not witness any injustice. Needless to say, all injustice is forbidden in Islam.
If the father means this division to take place after he dies, he is then determining his inheritance. Three aspects of his division run against the Islamic rules of inheritance. The first and easiest to deal with is the inheritance of his wife. She will be entitled to one-eighth of all his property. If the pension she receives is equivalent to this share, then it is appropriate. If not, she should still receive her share. He cannot deprive her of it. Secondly, the father cannot deprive his daughters of their shares of inheritance. It is God who has given them these shares, and it is not up to the father to make any decision in this regard.
Thirdly, the father cannot deprive his son of his share because of his marriage. The young man is entitled to marry the woman he wants. His father may advise him against it if he feels that this marriage is unsuitable, but the son does not contravene Islamic law by choosing his wife. This is entirely up to him. The father is punishing him for no sin he has committed.
As for the contributions of his two sons in building the property, the father and his sons should work out some arrangement for this. Either the contributions were made toward building a family home and they are a form of help provided by son to parents, or they are investment buying a share in the family home. In the first case, they are a gift from the sons to the parents, and thus they belong to the father. The sons cannot make a special claim in lieu of giving their parents a gift. In the second case, the father should assign a portion of the house to each of his sons, which should be proportionate to the contributions they made.
I have not discussed the inheritance of the mother in this case, as it was not touched upon in the question. I hope that it was distributed among her heirs in the proper Islamic way. Otherwise, it has to be reconsidered and properly divided.