Question:
Assalamualaikum ustaz. Is it necessary for the hibah from takaful to be divided through faraid or managed as an inheritance?
Answer:
Waalaikumussalam wrt. wbt.,
Alhamdulillah, praise and gratitude to Allah SWT for His countless blessings for us all. Praise and salutations to our beloved Prophet Muhammad PBUH, his family, companions, and all those who follow his footsteps until the Final day.
Inheritance according to the 4th Edition of Kamus Dewan means wealth or property left by a deceased. [1]
Inheritance is sanctioned in Islam and it is explained in al-Quran, al-Sunnah and ijma’ of scholars. People who deny the sanctioning of inheritance are considered those who have denounced Islam. This is in accordance with the statement of Allah SWT:
لِّلرِّجَالِ نَصِيبٌ مِّمَّا تَرَكَ الْوَالِدَانِ وَالْأَقْرَبُونَ وَلِلنِّسَاءِ نَصِيبٌ مِّمَّا تَرَكَ الْوَالِدَانِ وَالْأَقْرَبُونَ مِمَّا قَلَّ مِنْهُ أَوْ كَثُرَ ۚ نَصِيبًا مَّفْرُوضًا
“For men is a share of what the parents and close relatives leave, and for women is a share of what the parents and close relatives leave, be it little or much – an obligatory share.” [2]
Through this verse, Allah SWT explains that every heir has a right to the inheritance left by their parents and family members.
Imam al-Tabari cited Abu Ja’far who said that the verse means for sons have their portion from the inheritance and for the daughters, have their portion from the same inheritance, whether it is a little or a lot, the obligated portion, obligated, known and specific for them (following what is stated in al-Quran and al-Sunnah). [3]
The verses regarding inheritance in al-Quran clearly prove that inheritance is sanctioned. The same is stated in the hadiths of the Prophet PBUH regarding this issue. Among them, Rasullullah PBUH said:
أَلْحِقُوا الْفَرَائِضَ بِأَهْلِهَا، فَمَا بَقِىَ فَهْوَ لأَوْلَى رَجُلٍ ذَكَرٍ
“Give the shares to those who are entitled to them, and what remains over goes to the nearest male heir.” [4]
The author of the book al-Fiqh al-Manhaji [5]stated: “The implementation of inheritance is obligatory. The inheritance is valid according to the evidences from al-Quran, al-Sunnah and ijma’ of scholars. It is the same as the rulings pertaining to prayer, zakat, muamalat and hudud. It is obligatory to be implemented and practised. It shouldn’t be changed or neglected even if it has been sanctioned for a long time.
It is the sanction of The Wisest and Most Praised Allah SWT. It protects the rights of all. However, even if anyone thinks that their opinion is better, the law of Allah SWT is still the best law there is.”
Allah SWT states:
تِلْكَ حُدُودُ اللَّـهِ ۚ وَمَن يُطِعِ اللَّـهَ وَرَسُولَهُ يُدْخِلْهُ جَنَّاتٍ تَجْرِي مِن تَحْتِهَا الْأَنْهَارُ خَالِدِينَ فِيهَا ۚ وَذَٰلِكَ الْفَوْزُ الْعَظِيمُ ﴿١٣﴾ وَمَن يَعْصِ اللَّـهَ وَرَسُولَهُ وَيَتَعَدَّ حُدُودَهُ يُدْخِلْهُ نَارًا خَالِدًا فِيهَا وَلَهُ عَذَابٌ مُّهِينٌ
“These are the limits [set by] Allah, and whoever obeys Allah and His Messenger will be admitted by Him to gardens [in Paradise] under which rivers flow, abiding eternally therein; and that is the great attainment. And whoever disobeys Allah and His Messenger and transgresses His limits – He will put him into the Fire to abide eternally therein, and he will have a humiliating punishment.” [6]
According to the above question, the hibah compensation or takaful benefit isn’t included in the category of inheritance. The Shariah Advisory Council, Bank Negara Malaysia, at its 52nd meeting dated 2 August 2005 has decided that the concept of statutory protection as practised by conventional insurance can be adopted in the takaful industry as follows:
“Payment of takaful benefits will not be part of the estate and will not be subject to the debts of the deceased takaful participant.”
The basis of this consideration is:
As the status of the takaful benefits granted will not change into a will, estate, etc. to fulfil the goal of the takaful scheme which is to protect the participant or nominee (recipient of the hibah), the takaful benefits granted are seen as similarities with the statutory protection adopted in conventional insurance. This means any takaful benefit named to the spouse, child or parent (if no spouse or child is alive at the time of nomination) cannot be cancelled, changed, surrendered and pledged without the consent of the nominee. In addition, the concept of statutory protection can also be used in the takaful industry as it preserves the interests of the nominee in takaful as well as does not conflict with the concept of hibah ruqba.” [7]
May Allah SWT grant us all understanding in this religion. Amin.
Wallahu a’lam.
[1] See: https://prpm.dbp.gov.my/cari1?keyword=harta+pusaka
[2] Surah al-Nisa’: 7
[3] See Tafsir al-Tabari, 7/597
[4] Narrated by al-Bukhari (6351)
[5] See al-Fiqh al-Manhaji, 3/284-286
[6] Surah al-Nisa’: 13-14
[7] See Resolusi Syariah dalam Kewangan Islam, pg. 88