Section

Concerning those “whose order of death is unknown,” so that it cannot be determined which of them died first, the disagreement is well known. The view more consistent with the principles of the Sharia is that they do not inherit from one another; rather, each is inherited from by his living heirs. This is the majority view and also one position within Ahmad’s school, though not its well-known position.

This is because, under the fundamental legal principles, what is unknown is treated as nonexistent. Consider someone who finds lost property: since the owner’s circumstances are unknown, the unknown is treated as nonexistent, and the finder becomes the owner of what he has found, because its ownership is not known.

Likewise, concerning a “missing person,” Ahmad adopted the opinions of the Companions who treated the unknown as nonexistent. They therefore regarded the woman as the second husband’s wife so long as the first husband’s situation remained unknown, both in fact and outwardly, just as with found property. Once his situation becomes known, the marriage becomes subject to his approval or rejection, and he is given the choice between his wife and the dowry. If he chooses his wife, she is his wife, the second marriage is invalidated, and no divorce from the second husband is required.

The point here is that Ahmad followed the Companions who treated the unknown as nonexistent. In the present case, if one of the two died before the other, that fact is unknown, and the unknown is treated as nonexistent. Thus, one person’s death preceding the other’s is treated as nonexistent, and neither inherits from the other. Furthermore, inheritance was assigned to the living so that the heir might succeed the deceased and benefit from his wealth.