Division of inheritance that includes gift
2-6-2016 | IslamWeb
Question:
Assalaamu alaykum. Please calculate the inheritance according to the following information: - Does the deceased have male relatives who are entitled to inherit: (A son) Number 2 - Does the deceased have female relatives who are entitled to inherit: (A daughter) Number 5 - Additional information: We are two brothers and five sisters. One brother and one sister are from our father's first marriage. Our father deceased. Our mother passed away a few months ago. She was living in our father's house. The house was given as a gift to our mother from our father. My brother who is living abroad was supporting our mother and one of our unmarried sisters. My brother had bought furniture and a car for our mother to use, but our mother never claimed these items as her property although these items were used by her. Are these items part of the inheritance? Can these items be divided among all the sons and daughters (including the stepbrother and stepsister)? One of our brothers-in-law took a loan from our brother for business. The business never took off. Is that sister eligible for inheritance from the house? The amount of the loan is greater than the amount of the inheritance. Thank you; looking forward to hear from you.
Answer:
All perfect praise be to Allaah, The Lord of the worlds. I testify that there is none worthy of worship except Allaah and that Muhammad 
is His slave and Messenger.
If a person dies and leaves behind two sons and five daughters and he did not leave any other heir such as a father, a mother, a wife, a grandfather or a grandmother, then his estate is divided among his two sons and his five daughters by ta’seeb (by virtue of having a paternal relation with the deceased and not having an allotted share, so they get what is left after the allotted shares have been distributed); the male twice the share of the female, as Allaah says (what means): {Allaah instructs you concerning your children [i.e. their portions of inheritance]: for the male, what is equal to the share of two females.} [Quran 4:11]
Therefore, the estate should be divided into nine shares, each son gets two shares, and each daughter gets one share.
With regard to the daughter whose husband had taken a loan from her brother and he did not give it back to him, then she is entitled to her full share from the inheritance as this does not have any relation with her husband being negligent in repaying his debt and it does not have any relation with his procrastination. Indeed, it is not permissible to prevent her from her right because of her husband. Allaah says (what means): {And every soul earns not [blame] except against itself, and no bearer of burdens will bear the burden of another.} [Quran 6:164]
The Prophet told one of the Companions who was with his son, “He does not bear your crime and you do not bear his.” Then, the Prophet recited: {And no bearer of burdens will bear the burden of another}. [An-Nasaa’i, Abu Daawood - Ibn Khuzaymah, Ibn Al-Jaarood and Al-Albaani graded it saheeh (sound)]
‘Awn Al-Ma’bood reads, “The crime (meant in the hadeeth) is what a person does which necessitates his punishment or legal retribution in this worldly life and in the Hereafter. The meaning is that he is not held responsible for the sins of others, regardless of whether those are his relatives or distant people. If a person commits a sin, then another person is not punished because of it.” This is evident in the objectives of Islamic law in confirming individual responsibility in this worldly life and in the Hereafter. A person does not bear the sin of another person who was not involved in doing that sin and who did not cause it.
As regards the house which your father gave to your mother as a gift, if the house is still registered in the name of your father, then in principle it should be divided among his heirs, including his son and daughter from his first wife. The house is not considered as the property of your mother to be passed on to her heirs unless there is valid evidence that your father gifted her the house and the conditions of giving a gift were fulfilled. In that case, the house shall be divided between her heirs only and her husband's children from his ex-wife are not included.
What your brother had purchased as a gift to your mother and she possessed it and disposed of it as its owner, then it will be for her heirs after her, and whoever claims that she took it and did not accept it as a gift, then he has to provide evidence as well.
If there is any dispute among you regarding the inheritance, then you should take it to an Islamic court, if any is available, or orally ask a scholar who is competent to act as a judge so that he would listen to all parties as this is more appropriate to know who is right and who is wrong. Indeed, the Prophet said to ‘Ali, 
“O ‘Ali: If two disputing persons (parties) sit in front of you (to judge between them), then do not judge between them until you hear from the other person in the same manner as you heard from the first person; if you do so, then justice will be clear to you.” [Ahmad and Abu Daawood]
Allaah knows best.