In Islam, only a legal marriage confers the right to inheritance

Dear Vivian,

My son, who professed Islam, passed away two years ago. During the distribution of his estate, his daughters received less share of the estate than the sons, while the children born out of wedlock were excluded entirely. Please, advise if this is in order and whether the law allows me to get a share of the property.

Amina,
Mombasa

Dear Amina,

To lay the basis of your concern, it will be prudent to understand which law governs the issues you have raised. The distribution of the estate of a person who professes Islam is governed under Islamic law. The basis of this is provided for under Article 170 (5) of the Constitution of Kenya, 2010, which clarifies that questions on inheritance in which all the parties profess the Muslim religion shall be submitted to the Kadhis’ Court. In fact, Section 2(3) of the Law of Succession Act provides that the applicable law in relation to a deceased Muslim shall be Muslim law.

Nevertheless, in Kenya, distribution of estates of a deceased person remains a thorny issue. However, under Islamic law, the Holy Quran gives guidance on how distribution is to happen. In Sura An-Nisa verse 11 and 12, it provides for distribution of an estate of a deceased Muslim as follows: “Allah commands you regarding your children: the share of the male will be twice that of the female. If you leave only two or more females, their share is two-thirds of the estate. But if there is only one female, her share will be one-half. Each parent is entitled to one-sixth if you leave offspring. But if you are childless and your parents are the only heirs, then your mother will receive one-third.”

Therefore, being the mother of the deceased, you are entitled to one-sixth of the estate your son left behind given that he also left behind children. The daughters, on the other hand, will get half of what the sons got.

Further, in Islam, only a legal marriage confers the right to inheritance when it comes to the spouse or offspring of the deceased, unless the deceased left a will written as per Islamic law. Hamid Khan’s study of the Muslim Law of Inheritance states as follows: “The blood relationship or nasab, which grounds a right of inheritance must be a legal relationship, and since there is no legal tie of nasab between a putative father and his illegitimate child or between their respective ‘legal’ relatives, the root cause simply does not exist. Just as partners in an invalid marriage are not husband and wife, so a person and his illegitimate offspring are not ‘father’ and ‘child’ for the purpose of inheritance.”

Finally, despite the children born out of wedlock being locked out of inheritance, the rightful beneficiaries may opt to give them a small share as indicated in the Quran in Surah An-Nisa verse 8.

The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer. [email protected]