CSSMuslim Law

Q. No. 4. What is meant by “missing person” in the law of inheritance? What would be the effect on the distribution of estate of a prepositus when one or more of his heirs are missing person? 2020

In Islamic law of inheritance, a “missing person” refers to an heir who is either absent or whose whereabouts are unknown at the time of the death of the deceased (prepositus). This can create a problem in the distribution of the estate of the deceased, as the share of the missing person needs to be allocated in accordance with Islamic law.

According to the majority of Islamic jurists, if one or more heirs of the deceased are missing persons, their shares in the estate will be temporarily suspended until they are found or declared legally dead. In the meantime, the shares of the other heirs will be distributed among them according to their respective shares as prescribed by Islamic law. Once the missing person is found or declared dead, their share will be distributed accordingly among their heirs, subject to the rules of Islamic inheritance.

However, some jurists have suggested alternative approaches to the issue of missing persons in the law of inheritance. For example, the Hanafi school of law allows for the missing person’s share to be distributed among the other heirs on a provisional basis, with the provision that if the missing person is found or declared dead, their share will be distributed among their heirs retroactively. On the other hand, the Maliki school of law holds that the share of the missing person should be divided equally among the other heirs, with the understanding that if the missing person is found or declared dead, their share will be taken back from the other heirs and distributed among their heirs.

In any case, the treatment of missing persons in the law of inheritance can have significant implications for the distribution of the estate of the deceased, and it is important to consult with a qualified Islamic scholar or jurist in such cases.

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