### The Unborn Baby

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Below is the answer to the problem given at the conclusion of the previous post:

The Paternal grandfather gets 1/4 from first mayyit + 2/13 from second mayyit. Total money value ＝ \$9,000
The Husband gets 3/13 from the second mayyit. Total money value ＝ \$6,000
Each Daughter gets 2/13 from the second mayyit. Total money value ＝ \$4,000 each

Any questions/confusions concerning the above answer should be posted in the comments section insha’Allah.

The unborn baby (i.e. the fetus) also has the right to inherit. It is haraam to deprive the unborn baby (who would have been an heir of the mayyit) from the mayyits estate.

When the wife of the mayyit is pregnant (or any other woman is pregnant whose baby can be an heir of the mayyit), it is recommended that the distribution of the estate be delayed until the child is born, so its sex can be known.

However, if the heirs do decide on immediate distribution, the child should be assumed a male and his portion should be kept aside for him as a trust (amaanah). If the child is born a male, all is well and the distribution already effected will remain valid. If, however, the child is born a female, the distribution will not be valid and the estate will have to be correctly redistributed.

Example 1: A man dies leaving behind

• 1 pregnant Wife
• 3 Haqeeqi sisters
• Mother
• Paternal grandmother

Male: We assume the child to be male (son), and apply the rules of hujub hirmaan:

The paternal grandmother is excluded, as well as the 3 sisters. This leaves us with:

• 1 pregnant Wife
• Mother

Note that there are actually three heirs here. The third is the male baby inside the pregnant wife.

Chart for Male (Son)

At birth it transpired that the child was born a female. We now have to redistribute the estate correctly.

Female: Let us now apply the rules of hujub hirmaan in the case of a female (daughter):

Only the paternal grandmother is excluded (by the mother).

Chart for Female (Daughter)

As you can see, the sex of the child can drastically change the outcome of how the estate is distributed.

Our final answer will be both the male and female versions, just for comparison purposes. Of course, depending on the actual sex of the child, only one of them will be the correct answer.

Male (Son): The estate will be divided into 24 equal portions:

The Wife will get 3 portions.
The Mother will get 4 portions.
The Son will get 17 portions.

Female (Daughter): The estate will be divided into 72 equal portions:

The Wife will get 9 portions.
The Mother will get 12 portions.
The Daughter will get 36 portions.
Each Haqeeqi sister will get 5 portions.

Example 2: A man dies leaving behind

• Pregnant Mother
• 1 Wife
• 2 Allaati sisters
• 1 Akhyaafi brother

These scenarios are not exclusive to the wife. It applies to any pregnant woman, as long as the baby she is carrying can be an heir of the mayyit. In this case the mother is pregnant, which means the child will either be the haqeeqi brother or haqeeqi sister of the mayyit.

Male: Once again, we assume the child the be a male (haqeeqi brother), and apply the rules of hujub hirmaan accordingly:

Only the 2 allaati sisters will be excluded.

Chart for Male (Haqeeqi brother)

A birth it transpired that the child was a female. Lets see the new results.

Female: Applying the rules of hujub hirmaan for a female (haqeeqi sister), we find that no one is excluded. Everyone inherits.

Chart for Female (Haqeeqi sister)

Male (Haqeeqi brother): The estate will be divided into 12 equal portions:

The Mother will get 2 portions.
The Wife will get 3 portions.
The Akhyaafi brother will get 2 portions.
The Haqeeqi brother will get 5 portions.

Female (Haqeeqi sister): The estate will be divided into 15 equal portions:

The Mother will get 2 portions.
The Wife will get 3 portions.
The Haqeeqi sister will get 6 portions.
Each Allaati sister will get 1 portion.
The Akhyaafi brother will get 2 portions.

Example 3: A man dies leaving behind

• 1 Wife
• 2 Daughters
• 1 Pregnant wife of a deceased haqeeqi brother (i.e. pregnant sister-in-law)

In certain cases, the child may inherit if its a certain sex and not inherit (whether do to exclusion or because its a non-heir) if its the opposite sex. This is one of those cases.

Here, if the child is a male, he will be the haqeeqi nephew of the mayyit and thus inherit as an `asbah. However, if the child is a female, she will be the haqeeqi niece of the mayyit. All nieces are non-heirs (zaawil arhaam), and so in the case of a female being born, she will not inherit.

Male: We assume the child to be a male (haqeeqi nephew), and apply the rules of hujub hirmaan:

No one is excluded. However, it should be noted that the sister-in-law does not inherit. The reason she is deprived is not because of the rules of exclusion, but simply because she is from among the ‘true’ non-heirs. See the sub-tab In-laws in the tab The True Non-Heirs.

Chart for Male (Haqeeqi nephew)

At birth it transpired that the child was a female. Lets see the outcome of the female version.

Female: If the child is born a female, she will not inherit as she would be a non-heir. Only the wife and 2 daughters would inherit.

Chart for Female (Haqeeqi Niece)

As you can see, radd was applied to the daughter (the right-most column of the chart is the radd category). Spouses are not entitled to radd, which is why the wife did not get any residue.

Male (Haqeeqi nephew): The estate will be divided into 24 equal portions:

The Wife gets 3 portions.
Each Daughter gets 8 portions.
The Haqeeqi nephew gets 5 portions.

Female (Haqeeqi niece): The estate will be divided into 48 equal portions:

The Wife gets 6 portions.
Each Daughter gets 21 portions.

Example 4:  A man dies leaving behind

• Maternal grandfather
• Mother
• 2 Wives
• Wife A who is pregnant.
• Wife B who is not pregnant.
• 1 Daughter
• 2 Granddaughters
• 2 Haqeeqi paternal uncles
• 1 Haqeeqi sister

Male: We first assume the child to be a male (son), and apply the rules of hujub hirmaan:

The maternal grandfather is a non-heir. The granddaughters, haqeeqi paternal uncles and sister are excluded. This leaves us with:

• Mother
• 2 Wives
• Wife A who is pregnant
• Wife B who is not pregnant.
• 1 Daughter

Chart for Male (Son)

At birth it transpired that twin daughters were born. Lets redistribute accordingly.

Female: Lets apply the rules of hujub hirmaan for twin daughters:

Maternal grandfather, of course, is deprived as he is a non-heir. The 2 granddaughters are excluded. This leaves us with the following:

• Mother
• 2 Wives
• Wife A who is pregnant
• Wife B who is not pregnant.
• 1 Daughter
• 2 Haqeeqi paternal uncles
• 1 Haqeeqi sister

In this scenario, we have two categories of `asabaat who are left “unexcluded”: The haqeeqi paternal uncles and the haqeeqi sister.

But remember, as we learned in the post When Multiple `Asabaat Categories Remain After Applying the Rules of Hujub Hirmaan (Total Exclusion), only the category closest in relation to the mayyit will inherit the residue, while the other will be deprived. In this case, the haqeeqi sister is closer to the mayyit, hence she will get all of the residue. The paternal uncles will be deprived.

Chart for Female (Twin Daughters)

The existing daughter plus the newborn twin daughters add up to three daughters.

Male (Son): The estate will be divided into 144 equal portions:

Each Wife will get 9 portions.
The Mother will get 24 portions.
The Son will get 68 portions.
The Daughter will get 34 portions.

Female (Twin Daughters): The estate will be divided into 144 equal portions:

Each Wife will get 9 portions.
The Mother will get 24 portions.
Each Daughter will get 32 portions.
The Haqeeqi sister will get 6 portions.

Below is a final example problem you can try on your own, insha’Allah.

A man dies leaving behind:

• 1 Haqeeqi paternal aunt
• Mother (wife A of deceased father)
• 1 Step-mother (wife B of deceased father – she is pregnant)
• 3 Haqeeqi sisters
• 2 Allaati sisters
• 1 Daughter of haqeeqi paternal uncle
• 1 Allaati nephew

How will the estate be divided and distributed in the following two cases?

1. A male is born.
2. Female twins are born.

Hint: The baby of the step-mother is the mayyits __________ sibling.

Insha’Allah, the solution to this problem will be given in the next post.

Before concluding this post, there are some important masaa’il you should know regarding the inheritance of the unborn baby:

1. It should be remembered that the share held in trust for the unborn child will be its property only if it is born alive. If it is born dead [i.e. a stillborn], it is not entitled to any inheritance. the distribution will then have to be re-arranged.
2. A child who dies after having been born or a child who dies after half its body has emerged, inherits its full share which will in turn be inherited by his/her heirs.
3. For the unborn child to be entitled to inheritance, the maximum period of waiting is two years from the date of death of the mayyit. This period of two years relates to the fetus of the mayyit, i.e. the mayyit’s wife gives birth within the specified period of two years. If the child is born after two years, he/she will not be entitled to any inheritance. In this case the child will not be regarded as being the offspring of the mayyit.
4. If the unborn child does not belong to the mayyit, but to someone else, e.g. the pregnant woman is the mayyit’s mother or the wife of the mayyit’s deceased son, then the maximum period for the child’s entitlement to inherit is six months. If the child is born within 6 months from the date of the mayyit’s death, he/she will inherit. If the child is born after 6 months, he/she will not inherit in the mayyits estate although the relationship of the child to the mayyit will be legitimate.
5. If a man dies leaving a pregnant wife who gives birth before 6 months from date of the nikah have passed, the child will not inherit in the mayyit’s estate. This child will not be legitimate.

Masaa’il taken from Kitaabul Meeraath by Majlisul Ulama of South Africa

## 5 thoughts on “The Unborn Baby”

Qari said:
November 28, 2015 at 9:40 AM

Salaam, for the question from the previous post why hasn’t radd been applied to the first mayyit i.e. husband’s share should have been 1/3 and the granddaughter’s share should have been 2/3? Please explain. Thanks

Qari said:
November 28, 2015 at 9:41 AM

Got it! A husband doesn’t get radd

Arslan responded:
November 28, 2015 at 4:02 PM

Wa `alaykumus-salaam.

Mashaa’Allah, yes you got it. As mentioned in the post “Introduction to Radd”, the husband and wife do not get radd (despite being zaawil furoodh) because they are not blood relatives.

Amir Hariri Bin Mohd Sa'adon said:
December 16, 2016 at 9:17 AM

what if the foetus is below 120 days, where there is still no soul/roh in the foetus. does he/she inherite?

Arslan responded:
December 18, 2016 at 8:36 PM

If you mean when the fetus is still in the mother, well then – as stated in the post – one should simply delay distribution of inheritance until it is born and the gender is known. If not, they may have to rearrange distribution if it was not born a male (as assumed).