What will happen to my spouse after my death according to the Shariah?

Surah an-Nisa from the Qur'an verse 4, ayah 12 states:

"In that which your wives leave, your share is a half if they have no child; but if they leave a child, you get a fourth of that which they leave after payment of legacies that they may have bequeathed or debts. In that which you leave, their (your wives) share is a fourth if you leave no child; but if you leave a child, they get an eighth of that which you leave after payment of legacies that you may have bequeathed or debts. This is a Commandment from Allah; and Allah is Ever All-Knowing, Most- Forbearing."

Among the instructions that we derive from this ayah are the following:-

1. A husband's share is one-half of his wife's estate if she does not have any offspring from him or other man. Otherwise, he receives one-fourth.

2. A wife is defined as a woman who was married to the deceased when he died or that was divorced by him but had not completed her iddah (waiting period). If there is more than one wife (maximum four) for a deceased, their share is divided equally among them.

3. The wives receive one-fourth of their husband's estate if he does not have any offspring from them or other woman. Otherwise, they receive one-eighth.

So what does this mean for your spouse after your death?

In the scenario where a couple buy their house in equal shares forming the majority of their assets and they also have children, but either the husband or the wife subsequently dies; what happens to the family home?

The answer accordingly to the Sharia is that if the husband dies, his wife retains her 50% share in the house which was already in her name and inherits a further 12.5% from her husband's estate. Therefore, his wife will own a total of 62.5% share in the family home and the remainder is divided amongst his inheritors such as his children and parents.

But if the wife dies, her husband retains his 50% share in the house which was already in his name and inherits a further 25% from his wife's estate. Therefore, the husband will own a total of 75% share in the family home and the remaining 25% is divided amongst his wife's inheritors such as her children and parents.

However, in the scenario where the family house in the husband's name only and he dies leaving a wife and children, the wife's share is 12.5% in the house.

We are often asked what will happen to my spouse after my death and will they have to leave or sell their home. There are several possibilities in this situation:-

Option 1: Where the surviving spouse wishes to remain in the home, but does not have sufficient means to buy the other shares, the other inheritors can agree that whilst retaining their shares in the house, the surviving spouse can continue to live in the house.

Option 2: Where the surviving spouse wishes to remain in the home, the market value of the home is obtained and the surviving spouse buys out the shares of your inheritors.

Option 3: The house can be sold and the proceeds of the sale divided amongst your inheritors. This may be an ideal solution where the children have left home and the surviving spouse decides to move to a smaller home nearer to one of the children.

Option 4: The other shareholders are entitled under the Sharia to give part or their entire share to the surviving spouse (or anyone else) while they are alive. But this must be a voluntary decision and they cannot be forced to agree to this.

For further advice and to explore other options which can be made during your lifetime, please contact our Solicitor, Amina Sayed-Hossen.

Submitted on Apr-16-2009

Written by Amina Sayed Hossen

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.