House distribution among half siblings and nephew
Question
This query is about our late father’s house. Our father passed away in 2006 leaving our mother, 4 brothers and 1 step sister. All 4 brothers are from our father and mother. Our sister is from our mother’s first marriage. The house was transferred to my mother in 2006 after our father passed away, the property shares were not distributed to any of us. Our mother carried on living in the house. In 2013 one of my brothers passed away, we were then 3 brothers and 1 step sister. Our mother is still alive today but in very ill health. The questions I have are:
(1) Does the son of our late brother get an equal share in the property like the 3 brothers who are still living? His father, our 4th brother, passed away 7 years after our father did.
(2) Does our step sister get a share in the house now because it is in our mother’s name? She was not eligible before as it was in our father’s name.
بسم الله الرحمن الرحیم
Answer
When a person passes away, whatever they own is divided among the heirs. This is only possible if the assets of the deceased are known. Therefore, the first thing you need to determine is when your father was alive, did the property belong to him 100% or was it co-shared. Just because the house was on his name does not necessarily mean that it belonged to him 100%. Sometimes a person gifts a share of the house to his spouse without changing the name on the title deeds, and sometimes there are other reasons why the name on the title deeds does not reflect ownership from an Islamic perspective. It is therefore necessary to ascertain how much of the property he owned when he passed away.
Assuming that 100% of the house belonged to your deceased father, and he did not leave behind any parents, and only left behind a wife and four sons, then the shares of the heirs are as follows:
- Wife (your mother): 4/32 (12.5%)
- Each of the four sons (including you): 7/32 (21.875%)
Thus, each of the four sons have a 21.875% share in the property.
Now that one of the sons of your deceased father has passed away, his share of 21.875% along with any of his other assets will be distributed among his heirs which includes his children, wife and also importantly his mother. The question does not mention if he left behind a wife and any other children. Assuming he left behind a wife and a son and his mother, then the shares of the deceased son’s heirs are as follows:
- Son’s wife: 3/24th (12.5%)
- Son’s son: 17/24th (70.83% rounded off)
- Son’s mother: 4/24th (16.67% rounded off)
This is important to note because your mother’s share in the house is potentially 16.15% (rounded off, 12.5% + 4/24th of 21.875%).
All of this is assuming that your deceased father owned 100% of the house upon his demise, and also assuming that your deceased brother (one of the sons) passed away leaving behind a wife, a son, and a mother, and no other children. Any change in circumstance will impact on the calculation.
Your questions are now addressed:
(1) The son of your late brother will be entitled to his share in the inheritance of the house. This will not be the same as his uncles for the reasons mentions above. If your deceased father owned the house 100%, and your late brother left behind one son, a wife and your mother, then the son’s (grandson of deceased father) share is 17/24th of the 21.875%.
It is also worth noting that upon your mother’s demise, this grandson of hers will not automatically inherit anything from her. It follows from this that if your deceased father did not own 100% of the house upon his demise and it was co-owned by your mother, then your deceased brother’s son’s share in the house will be less, because your deceased brother’s inheritance from the father’s share would be less.
(2) As mentioned above, a property being in someone’s name does not necessarily reflect ownership. The central question is whether your deceased father owned the house 100% or not upon his demise. Assuming he owned 100% of the property from an Islamic perspective, then your mother’s share in the house is 16.15% (rounded off) as mentioned above. Therefore, when your mother passes away, 16.15% of the house will be subject to inheritance. At that point, if her heirs are the three sons and her daughter (the half-sister), then the daughter will get 1/7th of this 16.15% of the house and 1/7th of any other assets of her mother, whilst the sons will get 2/7th of this 16.15% (in addition to their pre-existing shares in the house) and 2/7th of any other assets of their mother.
If, at the point of your father’s demise your father owned 50% and your mother owned 50% of the house from an Islamic perspective, then this would change the calculations significantly.
The principles and calculations above should answer your queries. However, please note that some assumptions have had to be made. If your circumstance is slightly different or you need any clarity, please do not hesitate to contact us. A slight change can impact the calculation substantially.
Allah knows best
Yusuf Shabbir
28 Jumādā al-Thāniyah 1445 / 11 January 2024
Approved by: Mufti Shabbir Ahmed and Mufti Muhammad Tahir
