Inheritance under Shariah Law
The United Arab Emirates Law of inheritance is very broad. It is suitable for not only Muslims but can be applied to inheritance cases involving people of any religion and nationality. Sharia law, without question, applies to all Muslims; however a non-Muslim foreign national may choose to have his estate either be administered under Sharia Law or can opt for the law of their nation of origin. The Law of Shariah is open for modification and further interpretation. Further, as the United Arab Emirates (UAE) is a civil law jurisdiction, the effect of precedents is invalid when compared with common law jurisdictions. The UAE does not pursue the right of survivorship, wherein the mutually possessed property is given to the enduring proprietor, and the UAE courts have a restrictive expert to choose such issues.
The Muslim law of succession comprises of four sources of Islamic law:
- The Holy Quran;
- The Sunna - the act of the Prophet;
- The Ijma - the agreement of the scholarly men of the network on what ought to be the choice on a specific point;
- The Qiyas - an analogical conclusion of what is correct and just as per the high standards set somewhere near God.
Muslim law recognises two types of beneficiaries or heirs, Sharers and Residuary. Sharers are the ones who are qualified for a specific offer in the deceased’s property. As per the law, the Sharers can be any of the following:
- Daughter of a son
- Paternal Grandfather
- Grandmother on the male line
- Full sister
- Consanguine sister
- Uterine sister, and
- Uterine brother
Generally, there are three types of nasabi residuary, namely, residuary by himself, residuary though another and residuary along with another.
It is also important to note that the chief source of the law of inheritance in the UAE is Shariah, and based on the same Shariah Law, a few Federal Laws in the UAE have been enacted. The federal laws are –
- Federal Law Number (5) of 1985 with regards to the Civil Transactions Code (the Civil Code)
Article 17 of the Code states that
i. “Heritage shall be governed by the law of the testator upon the death thereof.
ii. The state shall be entitled to the financial rights present on its territory and belonging to the foreigner having no heirs.
iii. The objective provisions of the will and all actions related to the after-death stage shall be governed by the law of the State of the person carrying out such action upon the death thereof.
iv. The form of the will and all actions related to the after-death stage shall be governed by the law of the State of the person carrying out such action upon the issuance thereof, or the law of the State in which such activities took place.
v. Provided that the law of the United Arab Emirates prevails regarding the will issued by a foreigner about the real estate thereof in the State”
- Federal Law Number (28) of 2005 concerning the Personal Status Law (the Personal Status Law).
Article 1(2) “The provisions of this Law shall apply to citizens of the United Arab Emirates State unless non-Muslims among them have special provisions applicable to their community or confession. They shall equally apply to non-citizens unless one of them asks for the application of his law.”
- Federal Law Number (25) of 2017 concerning on inheritance, wills, and probate for non-Muslims living and working in the Emirate of Dubai. The law affirms that foreign non-Muslims expatriates can now register wills in English by virtue of internationally recognized Common Law.
Right to claim the deceased's estate
As per inheritance Law in the UAE, beneficiaries and relatives reserve the privilege to claim the estate of the deceased, an estate is guaranteed for non-Muslims, if there exists a legitimate will. However, in case of death of a Muslim, the estate may be moved to the individuals who qualify as a beneficiary under standards of Shariah Law.
In case of the death of a Muslim, the courts decide the beneficiary and reconfirm the same with two male witnesses along with the evidence, the evidence must be in the form of documentary proof, like marriage or birth certificates. Life partner, guardians, grandkids, kin, grandparents, uncles/aunties, nephews/nieces are considered as beneficiaries by the Shariah Law. The Shariah Law also imposes a few conditions on who can become an heir. As per the law, the following people cannot be an heir-:
- An illegitimate child, as well as adopted children, are not considered as beneficiaries;
- An individual murdering to benefit from the property will be ineligible to claim the estate;
- Divorced women cannot claim from ex-husband's property unless they are undergoing the "iddat" period. Iddat is the period in Islam wherein a woman must observe after a divorce or after the death of her husband, during which period she may not marry another man. The purpose of the same is to ensure that the male parent of an offspring produced after the cessation of marriage (nikah) would be known.
Division of estate among the heirs of the deceased
In the event of the death of a Muslim, the transferable rights will include every one of the rights relating to the property, usufruct and any other dependent rights. It is important to note that transferable rights will also cover the obligations of the deceased, which can be paid off from his estate. After fulfilling all the commitments and making payment of funeral obligations, whatever is residue shall be divided among the heirs. Below mentioned are the ways by which the assets will be distributed:
I. One half of the assets will be given to:
- The husband if no descendant;
- The daughter;
- The daughter of the son,
- The sister, if she has no brother or sister, a successor of the deceased, father or grandfather;
II. One-fourth of the property will be given to:
- The husband, if wife has a descendant;
- The wife, if the husband has no descendant.
III. One eight of the property will be given to:
- The wife, if the husband has a successor.
IV. Two-third of the property will be given to:
- daughters, if no son;
- daughters of son, or his successors, of the deceased, has no son, grandson of the same degree;
- germane sisters, if there is no germane brother, successor, father or grandfather;
- consanguine sister, if there is no consanguine brother, a germane brother or sister, a successor, father or grandfather.
V. One-third of the property will be given to:
- The mother, if the deceased has no successor;
- Mother's children, if there is no successor, the property shall be divided equally;
- The paternal grandfather, if he concurs the estate of germane or consanguine brother and in the absence of forced heirs;
VI. One-sixth of the property will be given to:
- The father upon concurring with succeeding descendant;
- The paternal grandfather, if the deceased has a successor,
- Mother, along with the successor of deceased;
- Grandmother, if she is not ineligible for an inheritance;
Division of estate under the law, among the heirs of a deceased non-Muslim, who is a foreign national
The Law in UAE permits the non-Muslim, foreign nationals to draft their will and to divide their property according to their will. However, in case a non-Muslim foreign national dies intestate, the Courts, as per the Civil and Personal Law of the UAE will distribute the assets of the deceased according to the principles of Shariah Law. It should be noted that as per Article 17(1) of the Civil Law, the inheritance of a person will be regulated by the law during the time of his death. Whereas, Article 17(5) states that the UAE law will apply to the wills of non-Muslim foreign nations, no matter where their property is located, in the UAE of outside of UAE. In addition to the aforementioned law, Article 1(2) of the Personal Law mentions that the said law will be applicable to non-Muslim unless he chooses to be administered under the law of his country. To explain further, this means that if a non-Muslim foreign national dies in the UAE and has assets in his home country, then, in that case, the laws of the home country can be applicable if his heirs request the Court. However, there is a restriction on dealing with the assets located in the UAE.
As mentioned above, foreign nationals are given a choice to chose the law of the deceased during the time of his death. This can be done when the heirs first appear in the Court, they must request the court for application of home country law of the deceased. Heirs seeking to be governed by the law of the home country of the deceased shall submit the following as per Article 276 of the Personal Law
- The duly legalised death certificate;
- Last domicile of the deceased;
- duly authorized will of the deceased.
Although the Personal Law allows the request for application of home country law, the Law does not expressly set aside the civil code, which leads to a level of uncertainty as to whether a non-Muslim will be considered under Shariah Law or under home country law.