Monday, November 20, 2017 - 2 Rabi' al-Awwal 1439

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Is the wife entitled to take her deferred mahr before the distribution of her husband's estate?

Is the wife entitled to take her deferred mahr before the distribution of her husband's estate?

Answer

It is established in Islamic jurisprudence that the rights associated to estate division are of different degrees; some are stronger than others. These are classified as follows:

1- Preparing the body for burial

This includes expenses for preparing the body i.e. washing and shrouding, burial expenses and other necessary matters that must not be executed with stinginess or extravagance. These expenses are deducted before anything else because they cannot be delayed; they must be hastened to honor the deceased.

2- Paying outstanding debts

Debts owed by the deceased must be paid, especially financial obligations due on the property itself and which are verified by either acknowledgment or proof. These debts must be paid before dividing the estate to absolve the deceased of his obligation.

Scholarly opinions on debts owed to God the Almighty

• Ibn Hazm and Al-Shafi'i: These debts, such as zakat and kaffara [expiation] take precedence over debts owed to others.

• The Hanafis: Debts owed to God the Almighty are waived with death. In Hanafi jurisprudence, the heirs are not required to pay the debts of the deceased unless they volunteer to do so or if the deceased includes such a request in his will in which case, the request is tantamount to a bequest made to a non-relative. It must be deducted by the inheritors or executors of the bequest from one third of the property after preparing the body for burial and paying debts.

Debts are given precedence over bequests even though they are mentioned after bequests in the Quranic verse: “… after any bequest they [may have] made or debt” [4: 12]. The reason is because paying a debt is obligatory while making a bequest is a [voluntary] donation. It is necessary to give precedence to what is obligatory over a donation.

It was reported in a non-prophetic tradition that Ali Ibn Abu Talib (may God be pleased with him) said: "You read [in the Quran] the bequest before you read [the will for paying] debts. The Prophet ordered that debts be paid before bequests."

3- The bequest
It is to be executed from one third of the estate after preparing the body of the deceased for burial and paying his debts. If the bequest is more than one third of the estate, permission for this excess must be sought from the inheritors if the recipient of the bequest is a non-relative. If the bequest to an inheritor is in excess of one third of the property of the deceased, permission must be sought from the rest of the inheritors.

4- Division of the estate

After implementing the above, the estate of the deceased is divided according to the rules laid down by God the Almighty.

The ruling

The deferred mahr [dowry] is a debt owed by the husband to his wife and is payable when the first of either divorce or death takes place. In this scenario, the deferred portion of the mahr is to be deducted from the estate and given to the wife in full before the estate’s distribution.

And God the Almighty knows best.
 

Related links
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