The Prophet—peace and blessings be upon him—said:

“People of two different faiths do not inherit from one another.”

The Shāfiʿīs and Ḥanafīs rely instead on his statement—peace and blessings be upon him—

“A Muslim does not inherit from a disbeliever, nor does a disbeliever inherit from a Muslim,”

arguing, by way of the implied meaning (dalīl al-khiṭāb), that a Muslim inherits from a Muslim and a disbeliever from a disbeliever. Yet the proof drawn from dalīl al-khiṭāb is weak, and especially so in this issue.

[Inheritance of the Ḥumalāʾ]

The jurists also disagreed about the inheritance rights of the ḥumalāʾ—that is, those who arrive from non-Muslim lands carrying their children and, once in Muslim territory, claim births that would establish lineage.

There are three opinions:

1. They may inherit on the strength of the lineage they claim. This was the view of a number of the Successors and of Isḥāq ibn Rāhwayh.

2. They inherit only when supported by evidence that confirms their lineage. This was asserted by Shurayḥ, al-Ḥasan al-Baṣrī, and others.

3. They are not entitled to inherit at all.

Three positions are likewise reported from ʿUmar, but the best-known narration from him is that he allowed inheritance only to those born in Arab lands; this is also the position of ʿUthmān and ʿUmar ibn ʿAbd al-ʿAzīz.

As for Mālik and his followers, their statements differ. Some, such as Ibn al-Qāsim, require proof before they may inherit, whereas others—among them ʿAbd al-Malik ibn al-Mājishūn—deny them inheritance altogether, even with upright witnesses.

Ibn al-Qāsim reports from Mālik that, concerning the inhabitants of a fortress who capitulated to Islamic rule and testified for one another that they inherited mutually, Mālik accepted their claim. From this it may be inferred that they inherit without formal evidence, for Mālik does not admit the testimony of non-Muslims for or against one another. He added: if they have been taken as captives, their claim is not accepted.

The jurists of Kūfah, together with al-Shāfiʿī, Aḥmad, and Abū Thawr, adopted a similar distinction. They said: if such people enter Muslim lands of their own accord, with no one exercising control over them, their claim to lineage is accepted; if, however, they are seized as prisoners and reduced to slavery, their word is not accepted unless supported by proof.

Thus four opinions emerge in the matter: two at opposite extremes and two that draw a middle course.

The majority of scholars in the major centers—and, among the Companions, ʿAlī, Zayd, and ʿUmar—hold that one who is himself ineligible to inherit, such as a disbeliever, a slave, or an intentional killer, does not preclude others from inheriting.

Ibn Masʿūd, by contrast, treated these three—namely People of the Book, slaves, and deliberate killers—as blocking others while not inheriting themselves; this was also maintained by Dāʾūd and Abū Thawr.

The majority argue that exclusion (ḥijb) is inseparable from inheritance, whereas the second group contend that exclusion is lifted only by death.

[Inheritance of the Missing]

The scholars also disagreed about persons lost in battle, drowned, or buried under ruins when it is unknown which of them died first. How, they asked, should their estates be distributed if they were mutual heirs? Mālik and the scholars of Madinah held that none of them inherits from the others; instead, their combined estate passes to whichever of their relatives remain, or—if no heirs exist—to the public treasury. Al-Shāfiʿī, Abū Ḥanīfah, and his associates agreed, as related by al-Ṭaḥāwī.