Divorcing One's Wife During One's Last Illness: Valid?
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Divorcing Wife During Last Illness: Valid?



Reply Date

Feb 22, 2018


A man was afflicted with rheumatism six years before his death; the illness reached its peak six months before death. When he died, he left an ex-wife without children whom he had divorced 46 days before his death. Is such an ex-wife entitled to inherit from him, bearing in mind that the deceased has also left another wife with children of his?



Divorcing One's Wife During One's Last Illness

In the Name of Allah, Most Gracious, Most Merciful. 

All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.

In this fatwa:

According to some scholars, a man’s divorce during his last illness is deemed invalid, for he might have intended to disinherit his wife by such a divorce. This kind of divorce is called by scholars “escapee’s divorce”, for such a husband “escapes” his wife’s right to inherit from him.

In this regard, the late Sheikh Hassanein Makhluf, former Mufti of Egypt, stated:

The last illness is that during which pain keeps increasing till death. Juristically, it is agreed upon that the marriage must be well-established and in effect when one of the two spouses dies to entitle the other to inherit.

That is to say, in order to be entitled to inherit from her deceased spouse, the wife must not be validly divorced or judgmentally divorced, such as being in her waiting period (`iddah) after a revocable divorce or an irrevocable divorce when the deceased has divorced her during his last illness without her request or consent.

Accordingly, the deceased in the latter case is deemed an escapee for trying to disinherit his wife. Still, his death in this case, while she is in her waiting period after such a divorce, does not disinherit her; that is, she is still one of his legal heirs as a wife, and she is entitled to get half the eighth of the estate as a prescribed share, due to the existence of another wife of the deceased with legally-inheriting offspring.

Almighty Allah knows best.

Editor’s note: This fatwa is from Ask the Scholar’s archive and was originally published at an earlier date.

About Sheikh Hassanain Makhluf

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