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Couple agreeing that everything will go to the surviving spouse upon demise

Fatwaa ID: 1663

Question:
السلام عليكم ورحمةالله وبركاته
Respected Mufti

Please advise on the following:

1) A couple agrees that when they pass away, or are close to it, everything becomes the spouses. As such, upon a terminal illness, the wife signed everything over to the husband, leaving nothing for the children. Is this correct, and if not please explain if should be rectified?

2) Can belongings of a deceased person be sold and the money therefrom be used as isaale thawaab for the person?

Answer:
In the Name of Allaah, the Most Gracious, the Most Merciful.
As-salaamu ‘alaykum wa-rahmatullaahi wa-barakaatuh.

  1. The above is not permissible. The agreement in question was invalid. Nothing transfered to the husband. The wife’s belongings will all form part of her estate and must be divided in accordance to the Shari’ah laws of succession and inheritance.

A gifting during a terminal illness which leads to one’s demise is invalid. For the validity of a gifting, the gifter must do so during his lifetime in good state of health and the giftee must assume constructive possession of the gifted items. Furthermore, if the purpose of such gifting is to deprive the heirs, then that is impermissible.

  1. Upon the demise of a person, all his belongings will be distributed amongst the Shari’ah stipulated heirs. The estate cannot be simply sold and given away in charity. If all the heirs, provided that they are mature and sane, voluntarily and happily agree on giving something in charity on behalf of the deceased, then that will be permissible. In that case, upon their mutual agreement, items may be sold to generate funds. It should be noted that if an heir does not agree to this, it may not be forced on to him nor can he be shunned for that. It is his right to receive his full share from the estate.

It is in the best interests of the heirs that the estate is divided appropriately and then the heirs voluntarily donate from their respective shares as they wish on behalf of the deceased.

And Allaah Ta’aala knows best.
Mufti Muajul I. Chowdhury
Darul Iftaa New York
https://askthemufti.us/

02/03/1445 AH – 08/20/2023 CE | AML3-3611

وصل اللهم وسلم وبارك على سيدنا محمد وعلى ءاله وصحبه أجمعين

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