“I sometimes think that the only person fit to inherit wealth is the person who doesn’t need an inheritance – the person who would create his own fortune no matter what his start in life – and have come to view inherited wealth as an affliction.” – William E. Simon
The primary source of law that governs the issue dealing with inheritance and many family matters in the UAE is Shari’a Law. Several codified legislation in the UAE has built its legal framework on the foundation of Shari’a Law. The law of inheritance in the UAE is extensive. Being a nation with over 80% of its population dominated by expatriates, the UAE strives to accommodate all of its residents regardless of their religion and nationality. Inheritance for Muslims in the UAE is governed by Shari’a Law, whereas non-Muslims are permitted to decide to be governed by their home country’s laws. The main laws in the UAE that govern inheritance and succession are the UAE Civil law, also known as Federal Law Number 5 of 1985, and the Personal Status Law, also called Federal Law Number 28 of 2005. Under Article 1 Section 2 of the Personal Status Law, the law will be applicable to all UAE citizens unless a non-Muslim foreign resident possesses distinctive provisions in the laws of their home country; hence they are permitted to select the laws of their home country and avoid Shari’a Law. Concurrently, the Civil Law under Article 17 affirms that succession will be governed by the law of the testator (person who wrote the will) at the time of death. The UAE being a civil law country, does not recognize “right of survivorship” in common law jurisdiction wherein a jointly owned property will be transferred to the surviving owner; hence UAE Courts will have sole authority on deciding the matter.
Inheritance in Islamic jurisprudence, often called Mīrāth, is a branch of Shari’a Law that is known as ilm al-farāʾiḍ, or ‘the science of the ordained quotas.’
The Qur’an has provided multiple provisions that deal with the rights and restrictions regarding succession, as well as introduced improvements towards the treatment of women and family matters. The revelation of the Qur’an repaired and amended the laws of inheritance, which the pre-Islamic society lacked in 609 CE; hence a complete legal system was formed. The Qur’an has also established additional heirs that were not entitled to inheritance in pre-Islamic society, such as the mention of 9 relatives (6 females, six males) specifically. Furthermore, the Qur’an has also included distant male relatives from the woman’s side, such as her half brother or husband, which were previously excluded prior to the revelation of the Qur’an. The heirs mentioned that we’re entitled to inheritance are the mother, father, husband, wife, daughter, brother (who shares the same mother), full sister, a sister who shares the same mother, and consanguine (blood relative) sister. Therefore, the Qur’an improved the status of women by clearly identifying their entitlement for inheritance. The Qur’an, however, does not explicitly talk about male relatives like the sons, although it does mention that the son’s share must be twice the daughter’s share of the inheritance. According to Islamic scholars, an explanation as to why sons are entitled twice the share is due to the fact that Islam bestows men with responsibilities and accountabilities to provide protection, safety, and sustenance to women. It further explains that women are only entitled to half of the share because upon marriage, women are entitled to a dowry provided by the husband. The dowry can be considered an advance form of inheritance from her husband.
Due to the fact that inheritance is a fundamental branch of Shari’a law as it is stated in the Qur’an that Muslims inherit from each other. There are four essential duties that must be enacted when a Muslim passes away, which are:
Because of this, it is deemed obligatory for the relatives of the deceased to be determined. Under Shari’a law, the testator has two main restrictions that are placed upon him when writing a will, which are:
The deceased person’s primary heirs consist of a spouse, both parents, son, and daughter. They are generally referred to as primary heirs and they are never excluded. The remaining heirs can be excluded, and it differs according to situation and circumstance. Inheritors usually fall under three categories in Islamic Law:
This group usually inherits the designated shares or quota of the estate, and the beneficiary includes spouse, parents, son, daughter, brothers and sisters, grandparents, and others.
These are the members who receive an inheritance as residuary after the quota-heirs’ shares have been accordingly distributed.
This usually includes maternal grandfather, aunts, nieces, and female cousins, and will include any family that are not quota-heirs and ‘Asaba.
To distribute the inheritance, the primary step for courts is to determine the heirs and confirm the family ties through two male witnesses and proof of documentation such as a birth certificate or proof of marriage. Furthermore, the Shari’a Law provides several conditions where a person cannot become an heir, such as:
The inheritance procedure
Inheritance is divided out in the following order according to Shari’a Law:
1 .The quota-heirs get their allocated shares first. If there is no more property left to divide, then the process is complete. If the property was not exhausted by the quota-heirs, then the second step must commence;
2. Residuary heirs will get what is left of the property;
3. In cases where there are no residuary heirs available, but there is the remainder of the property, then the money will be redistributed evenly to the quota heirs, and this process of redistribution is called Al Rad.
4. If there is an absence of quota-heirs or residuary, the property will then be distributed to extended family members.
5. In a certain circumstance where there are no beneficiaries at all (quota-heirs, residuary, extended family), the estate will escheat to the state treasury, and this is called Bayt-al-mal.
Inheritance under UAE laws Matters of inheritance in the UAE are brought before the Dubai Courts and is heard by one or more judges. A will is the most common method that is used when determining who gets to inherit the deceased’s assets and estate. It determines the inheritors but is an instrument that can specify the deceased’s wishes, such as determining a legal guardian for children, special gifts or executors, etc. For residents residing in the UAE, a will is an essential aspect as the UAE Government states that should a deceased person have no will, then the Courts will implement Shari’a Law. All the deceased’s personal assets, such as their bank accounts or shared assets, will be frozen until all matters of inheritance are determined by the Courts.
In matters concerning child custody and guardianship, Article 142 of the Personal Status Law gives definition and provision and states that custody is usually granted to the mother of the infant child; however, guardianship is primarily granted to the father of the child due to the responsibility that befalls on him regarding financial support. However, a woman’s custody of the infant child will terminate when a male child reaches eleven and a female reaches thirteen under Article 156 of the Personal Status Law. In the situation where the child’s father was to pass away, then guardianship is granted to the closest male relative of the father. The mother of the child will retain custody; however that factor depends on whether or not she remarries. If the child’s mother were to die in the UAE, then the father would remain the sole guardian and custodian of the infant child. This would require the husband to have a suitable female presence, such as a female family member to reside and take care of the child. If, however, there is no will present nor instructions in regard to settling the custodian and guardian of the child. The Courts will intervene and take the child in their custody until an appointed guardian is decided who is approved by the Courts. To know more on custody cases, the family law practice department of fotis international is well experienced to guide you on that.
Non-Muslims have the liberty to apply the law depending on the deceased’s nationality, so long as there is a will. As aforementioned, Article 17(1) of the Civil Code states that the laws of the country the UAE resident belongs to can be applicable in dealing with inheritance. The Personal Status Law further supports this provision as Article 1, which permits non-Muslim residents to submit a will under the laws of their home country, and rely on it should a need of succession occur in UAE; hence they will be exempted from Shari’a Law. However, this will be approved by the inheritance court, and the process would be much easier if the will was translated into Arabic and notarized by a notary public in UAE. The UAE has established the DIFC Wills and Probate Registry in 2015 that covers inheritance and succession matters specifically for non-Muslims that have assets in Dubai. These rules are in line with the common law practices and provide non-Muslim expatriates with legal certainty over the allocation of their assets or child custody matters in the event of an untimely demise in the UAE. In order to register a will at the DIFC Wills and Probate, a testator should be non-Muslim, be over 21 years of age, and must have assets in Dubai. Should a testator wish to convey their wish in choosing a guardian or custodian for their children, then the requirement of the child living with the testator is needed. Having a UAE residence visa alone is not sufficient to register in this aspect.
The fee for registering a will in DIFC is AED 10,000. New laws regarding inheritance in UAE (as of 2020) Due to the country’s effort to attract foreign direct investments, the UAE has established a set of newly amended rules regarding succession and transfer of estates under the law of Inheritance and Deceased Estates. These changes will permit UAE expatriates and foreigners who possess real estate investments in the UAE to be able to identify in their will the laws they desire to be governed when distributing their assets in the UAE. Additionally, the new rules stipulate that there is no will set in place in the instance, nor is there a preference on which laws to be governed by in the event of demise, then the law of the deceased’s nationality will be applied. This is a significant amendment to the law, as prior to this, Shari’a Law will usually be initiated regarding an estate should there be no will from a deceased involved. This particular provision will eliminate conflicts and disputes between the laws of UAE and the laws of the deceased’s home nation and validate and ensure that the desires and wishes of the deceased are being met and respected in accordance with the customs of their home country.