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Jointly-Owned Matrimonial Property Deducted Before Estate Divided Via Faraid?
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Question:

My brother-in-law passed away and left behind some properties. My husband was named as administrator of his estate. A problem arose when my husband was going to have the properties divided via faraid: the deceased’s wife (my sister-in-law) claimed that an amount representing jointly-owned matrimonial property has to be deducted from the entire estate before it is distributed. My questions are as follows:

Is it true that the estate of my brother-in-law has to be halved before it is to be divided via faraid? My sister-in-law is unemployed and I do not think any of the properties my brother-in-law left behind can be deemed as jointly-owned matrimonial property.

With regard to Takaful Insurance, will this be distributed fully to the policy’s nominee (under my sister-in-law’s name) and is not calculated as part of the deceased’s estate?

Are the savings within their children’s accounts (joint account) considered as part of the deceased’s estate?

What would be the best way in which to administer all of the above properties?

Daliyah Abu,
Subang, Selangor.


Answer:

The aim of administrating a deceased’s estate is to pass to those who are entitled to it and help the beneficiaries left behind, especially in order to relieve the burden of the deceased’s wife in raising her children all by herself.

According to Hukum Syara’, the estate of a deceased person is to be divided via faraid after the payment of debts and legacies. Verses 7, 11, 12 and 176 of Surah an-Nisaa' provide guidelines as to the persons who may be the beneficiaries to the deceased’s estate as well as the portion to which each of them are entitled.

Part of verse 12 of Surah An-Nisaa' which means, “In what ye leave, their (your widows’) share is a fourth, if ye leave no child; but if ye leave a child, they (your widows) get an eighth; after payment of legacies and debts.”

Before the estate of a deceased can be divided via faraid, your sister-in-law is entitled to claim her share of jointly-owned matrimonial property. Kitab Bughyatul Mustarsyidin by Sayyid Abdul Rahman bin Muhammad bin Hussain bin Umar, at page 159, states that:

"The properties of the husband and wife have been mixed up and it is not known who owns the larger proportion – there is no method that can be used to determine which property belongs to who – and then where occurs separation between the two or death, therefore it is not valid for either of them (spouse) or the beneficiary to administer (use) something of the estate before the property can be differentiated or before there has been an agreement between the parties (sulh), unless it is done together with its owner because there is no murajjih (signs to differentiate the ownership of the same)."

Therefore, even though your sister-in-law is unemployed, every bit of housework she had put in during the duration of the marriage is deemed to be her contribution towards joint-matrimonial property. Your sister-in-law is entitled to joint-matrimonial property before the estate is divided via faraid. Moreover, she is also entitled to one-eighth of the estate being her share under faraid after there has been division of the estate for joint-matrimonial property.

On the issue of Takaful Insurance, generally, the nominee of the policy will be the only beneficiary entitled to the insurance monies. However, if there are legitimate beneficiaries that contest the rights of the nominee named under the policy, then the insurance will be divided via faraid.

The saving in the accounts of the deceased’s children are considered to be part of a trust account. We believe that it was the deceased’s intention to open an account for his children in order to ensure they would not face financial difficulties in their future. Hence, those monies belong solely to the deceased’s children.

Your sister-in-law can require the bank to change her husband’s name on the account to hers on all the relevant documents to facilitate the management of her children’s accounts. The procedure to make the said change depends on the bank itself.

The best way to manage the deceased’s estate is of course to attain a collective agreement among all parties involved. In fact, in order to avoid misunderstandings and disagreements, two persons can be appointed as administrator of the estate. Therefore, aside from your husband, your sister-in-law is even more entitled to administer the estate of her late husband. At the very least, the property her husband left behind could be used to help her start a new life that is even more challenging, and for the sake of her children.

Panel lawyers, Sisters In Islam.

(You are welcome to post your queries to Sisters In Islam at No. 7, Jalan 6/10, 46000 Petaling Jaya Selangor or call our TeleNisa line 03-7784 3733 every Monday, Thursday and Friday or e-mail us at telenisa@sistersinislam.org.my)

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