ʿAlī and ʿUmar—may Allah be pleased with them both—together with the jurists of Kūfah, Abū Ḥanīfah according to authorities other than al-Ṭaḥāwī, and the great majority of the Basran scholars, held that such heirs do inherit from one another. Their method is to let each party inherit from the other on the basis of the property originally owned by the deceased, without adding to that estate anything he or she may already have received from the companion. In other words, whatever one of them has inherited from the other is not joined to his own assets; the estates are treated as though each consisted solely of the property the owner possessed at first, just as when the order of their deaths is known with certainty.

Example: A husband and his wife die together in war, by drowning, or beneath a collapsed building, and each had one thousand dirhams. The husband is allotted five hundred dirhams from the wife’s estate. The wife then inherits from the one thousand that was in the husband’s possession, but not from the five hundred he has just taken from her; her quarter share therefore amounts to two hundred and fifty dirhams.

Inheritance of the Child of Liʿān and the Child of Fornication

Among the further issues in this chapter is the scholars’ disagreement over the inheritance of a child born after mutual imprecation (liʿān) and that of a child conceived through illicit intercourse.

The scholars of Madinah, together with Zayd ibn Thābit, maintained that the child of liʿān inherits like anyone else. His mother receives only one-third, and the remainder goes to the public treasury—unless he has maternal siblings, in which case they take that one-third; or his mother is a freed slave, in which event the balance of her estate passes to her patrons. If neither case applies, the residue is assigned to the Muslims’ treasury. This is also the opinion of Mālik, al-Shāfiʿī, and Abū Ḥanīfah and their students, except that Abū Ḥanīfah, consistent with his own school, gives priority to the extended kin (dhawū al-arḥām) over the general body of Muslims.

Moreover, according to the principle of radd (“return”), those who uphold it would have the remainder of the estate revert to the mother.

ʿAlī, ʿUmar, and Ibn Masʿūd held instead that the child’s agnatic heirs (ʿaṣabah) are the agnates of his mother—that is, the men who would inherit from her. A separate report from ʿAlī and Ibn Masʿūd relates that they do not treat the mother’s agnates as his ʿaṣabah unless the mother herself is deceased; in that event they place the mother’s position on a par with that of the father. This was likewise the view of al-Ḥasan, Ibn Sīrīn, al-Thawrī, Ibn Ḥanbal, and others.

The first group rests its case on the general wording of the Almighty’s statement:

“If he has no child and his parents inherit him, then his mother shall receive one-third” (Q 4:11).

They argue: this woman is a mother, and every mother is entitled to one-third; therefore she receives one-third.

The second group cites several Prophetic reports: the ḥadīth of Ibn ʿUmar that “the Prophet—peace and blessings be upon him—attached the child of liʿān to his mother”; the report of ʿAmr ibn Shuʿayb from his father, from his grandfather, that “the Prophet—peace and blessings be upon him—assigned the inheritance of the child of liʿān to his mother and to her heirs”; the report of Wāthilah ibn al-Asqaʿ in which the Prophet—peace and blessings be upon him—said, “A woman acquires three estates: her freed slave, her foundling, and the child for whom she performed liʿān”; and a similar report from Makḥūl. All of these traditions were recorded by Abū Dāwūd and others.

The Qāḍī remarked: It is obligatory to act in accordance with these reports, for they serve to specify the general language of the Qur’an.