Is the wife entitled to take her deferred bride wealth before dividing up her husband's estate?
A man passed away. His survivors include a wife, two daughters, three paternal brothers and two paternal sisters. Is the wife entitled to take her deferred bridal wealth before dividing up the estate?
It is established in Islamic jurisprudence that there are 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.
Debts owed to Allah:
• Ibn hazm and al-Shafi'i: These debts, such as zakat and kaffara [En. expiation], take precedence over debts owed to others.
• The Hanafis: Debts owed to Allah 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 the request in his will in which case, the request is tantamount to a bequest 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 the 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 [An-Nisa`, 12].
The reason is because paying a debt is obligatory while a making a bequest is a [voluntary] donation. It is necessary to give precedence of the obligatory over a donation.
It has been reported in a non-prophetic tradition that Ali ibn abu Talib, may Allah be pleased with him, said: "You read [in the Qur`an] 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 the remaining one third of the estate after preparing the body of the deceased for burial and after 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 Allah Almighty.
The deferred bridal wealth is a debt owed by the husband to his wife payable when the first of either divorce or death takes place. In this scenario, the deferred bridal wealth is to be deducted from the estate and given to the wife in full before dividing it.
Allah Almighty knows best.