Muslim Residuary sharer under Islamic succession law

Fixed and residuary sharers inherit side by side in Islamic inheritance law. For example, if the daughters survive with sons, they inherit as a joint residuary. There are three types of residuary; Residuary in his own right (Asabah bi Nafsiha), Residuary in another's right (Asabah bi Ghayriha), and Residuary together with others (Asabah ma'a Ghayriha). Spouse, Mother, Grandmothers (i.e., Father of Mother, Mother of Mother how high soever), and Maternal Siblings never receive residuary shares unless he or she is the only living eligible inheritor as per Islamic law. Refer to the Lineage residuary chart for more details.

Residuary shares formula

Residuary Shares = 1 - Prescribed or Fixe shares except for Residuary sharer's share.

Classification of Residuary

Residuary can be classified into three groups.

Residuary in his own right (Asabah bi Nafsiha)

This includes every male, in whose line of relation to the deceased no female enters, and those are offspring of the deceased (i.e., Sons jointly with Daughters, Grandsons jointly with Granddaughters) and his root (i.e., Father and Father of Father how high soever), the offspring of his father or his brothers, then their sons, how low soever and then the offspring of his grandfather, or his uncles then their sons, how low soever. In all relations, Full blood prefers over Half-blood. i.e., the strength of consanguinity prevails.

Residuary in another's right (Asabah bi Ghayriha)

This includes four females whose shares are half and two-thirds and who become residuary in the right of their brothers.

Residuary, together with others (Asabah ma'a Ghayriha)

This includes every female who becomes residuary with another female (For example, a Sister with a daughter). The Last Residuary is the master of a freedman (which is not applicable in contemporary times).

Reference: Al-Sirajiyyah, Page 23 to 26

Residuary sharer

The Tasib (Residuary) orders, as agreed by all four Madhab, need to be followed, as demonstrated in the Islamic Inheritance Lineage Residuary chart below. The word "Tasib" is used for Residuary shares. There are two types of Residuary sharers.

Joint Residuary or Joint Tasib

Joint Tasib is only possible between males and females of the following combinations. Males get double the share of Females. There are five possible combinations where males and females receive the Residue as a Joint Residuary. Only one pair out of five pairs is eligible to receive the Joint Residue at one time, i.e., all five pairs cannot inherit simultaneously. They can be any number of Males and Females to inherit the Joint Residue in a Single pair. Females are all prescribed sharer normally, but they converted to Residuary in the presence of Males. For example, Daughters are fixed sharers, but they get converted to Residuary in the presence of Sons.

1. Sons and Daughters if both alive.

2. Sons of Sons and Daughters of Sons if both alive.

3. Father of Father and Siblings as per Shafii, Maliki, and Hanbali.

4. Full Brothers and Full Sisters if both alive*.

5. Paternal Brothers and Paternal Sisters if both alive*.

* - Other conditions and blocking (or exclusion) rules may also apply before they get eligible to receive residue.

However, there are some exceptions to these rules in some situations, such as Great grandson at the third or lower degree of removal from the propositus converts into (Joint) Residuary heir, a higher agnatic granddaughter but not vice-versa. This is an exception to the strict principle of Tasib occurs only between male and female relatives of equal degree, and is based on the ground that if a great-grandson must share his residual entitlement with a granddaughter of equal degree, he must a fortiori share it with a granddaughter who is nearer in the degree to the propositus than himself and who would otherwise inherit.

Independent Residuary or Independent Tasib

One type of inheritor takes the residue as an Independent Tasib as follows.

1. Sons or Sons of Sons how low soever*.

2. Father or Father of Father how high soever*.

3. Full Brothers or Paternal Brothers*.

4. Full Sisters or Paternal Sisters*.

5. Consanguine male relatives of the deceased include Full brothers’ sons, Paternal brothers’ sons, Full brothers’ sons’ sons, Paternal brothers’ sons’ sons, and so on until generations end. Then the Father’s Full brothers, Father’s Paternal brothers, Father’s Full brothers’ sons, Father’s Paternal brothers’ sons, Father’s Full brothers’ sons’ sons, Father’s Paternal brothers' sons' sons, and so on until generations end*.

6. Distant kindred (Receives similar to Prescribed or Fixed and Residuary sharer in the absence of All Prescribed or Fixed and Residuary sharers except Distant kindred do inherit in the presence of Husband or Wife)*.

Residuary orders with all combined

We will combine both Joint and Independent Residuary with orders.

1. Sons and Daughters inherit as a Joint Residuary, or Sons will inherit as an independent Residuary if Daughters do not survive.

2. Sons of Sons and Daughters of Sons inherit as a Joint Residuary, or Sons of Sons inherit as an independent Residuary if no Daughters of Sons survive.

3. Father

4. Father of Father (how high soever) as per Hanafi. Father of Father (how high soever) and Siblings as per Shafii, Maliki, and Hanbali.

5. Full Brothers and Full Sisters inherit as Joint Residuary, or Full Brothers inherit as an independent Residuary if no Full Sisters survive. Other blocking rules need to be observed for Full siblings share.

6. Paternal Brothers and Paternal Sisters inherit as Joint Residuary, or Paternal Brothers inherit as an independent Residuary if no Paternal Sisters survive. Other blocking rules need to be observed for Full siblings share.

7. Consanguine male relatives of the deceased include Full brothers’ sons, Paternal brothers’ sons, Full brothers’ sons’ sons, Paternal brothers’ sons’ sons, and so on until generations end. Then the Father’s Full brothers, Father’s Paternal brothers, Father’s Full brothers’ sons, Father’s Paternal brothers’ sons, Father’s Full brothers’ sons’ sons, Father’s Paternal brothers’ sons’ sons, and so on until generations end*.

8. Distant kindred (Receives similar to Prescribed or Fixed and Residuary sharer in the absence of All Prescribed or Fixed and Residuary sharers except Distant kindred do inherit in the presence of Husband or Wife)*.

Rules for determining Residuary

The conventional rules for identifying the residuary heirs are briefly described below.

FIRST

A sharer is excluded by any person through whom he or she is related to the deceased, and who may participate as a residuary. For example, Father excludes the Father of Father how high soever, Full Sisters or Paternal Sisters.

SECOND

All collateral sharers are excluded by a lineal male descendant or ascendant who can also take as a residuary. For example, Sons exclude full Sisters, Paternal Sisters, Maternal Brothers, and Maternal Sisters.

THIRD

A remoter sharer is excluded by a nearer residuary who is such that would convert such equally nearer sharer into a residuary. For example, Son and Sons of Sons how low soever in nearer degree exclude Daughters of Sons in a lower degree.

FOURTH

Full-blood residuary excludes the half-blood sharer so that it would convert such full-blood sharers into residuary. For example, Full brothers exclude Paternal Sisters as the latter would convert the full sisters into residuary.

FIFTH

All descendants of the parents of the deceased are excluded by one or more lineal descendants of the deceased. For example, Daughters and/or Daughters of Sons exclude Full Sisters and Paternal Sisters as sharers but they may inherit as a Residuary.

SIXTH

The nearer sharers exclude the more remote sharers, they having taken the maximum collective share fixed for that class. For example, Daughters of sons are excluded as sharers by multiple daughters or multiple daughters of sons of higher degree or three being one daughter or daughter of son with one or more nearer daughter of son. However, Daughters of Sons may inherit as residuary with son's of Sons of the same or lower degree.

SEVENTH

Full blood sharers exclude the half-blood sharers of the same degree and who exhaust the maximum collective sharer fixed for the class. For example, Multiple full sisters exclude paternal sisters.

Reference

1. The Muslim law of Inheritance, P-24 to 30 by Al-Haj Mahomed Ullah

The content related to Islamic Inheritance law in this article has been reviewed and endorsed by Dr. Mahir J. (Ph.D.) and Mufti Muhammad Nazir K. (Pursuing Ph.D.)