Inheritance
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Source: Bahá'í Library Online (bahai-library.com), curated by Jonah Winters. Used by permission of the curator. Original citation: Seena Fazel, Inheritance, bahai-library.com.
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Inheritance

Seena Fazel

published in Bahá'í Studies Review4:1

London: Association for Bahá'í Studies English-Speaking Europe, 1994

Laws encapsulate principles. In some cases they appear to conflict. A notable example is the apparent inconsistency between the principle of the equality of men and women, and Bahá'u'lláh's legislation in the Kitáb-i-Aqdas. The House of Justice states that "equality of men and women...is a fundamental principle of Bahá'u'lláh, therefore the Laws of the Aqdas should be studied in light of it."(1) The complex Bahá'í laws of inheritance in the Kitáb-i-Aqdas appear to favour men over women. In cases of intestacy – when an individual dies without leaving a will – male heirs receive more of the estate than female heirs. The eldest son receives the father's house and clothing as part of his inheritance, plus a share of the estate that is divided equally among all the children. A deceased son's inheritance from his parent is passed onto his son's children, but that of a deceased daughter is divided among other heirs. Widows inherit relatively little of their husband's estates (15%); a man's children – especially his eldest son – are the main beneficiaries. It has been argued that this system of inheritance advocates a mildly patrilineal family – where the continuity of the family is traced through the male line:

The Aqdas thus skews the structure of the family slightly
to place its continuity in the male line. In the law of inheritance the
family home passes to the son. Moreover, the father is assumed to have
the primary economic responsibility for the family. The assumption behind
the division of an intestate estate seems to be that the eldest son will
assume responsibility for the care of his mother and unmarried sisters....The
patrilineal family structure that the legislation of the Aqdas fosters
thus ensures that the father has a place and responsibility within the
family.(2)

Consequently, the biological father retains social and economic responsibility
for his children. Men bear primary responsibility for the family; widows,
step-children and orphans are the responsibility of their male blood-relatives.
Thus, it would seem that men are provided with economic incentives that
tie them to the family: "This principle of the husband's responsibility
to provide for and protect the family can be seen applied also in the law
of intestacy which provides that the family's dwelling place passes, on
the father's death, not to his widow, but to his eldest son; the son at
the same time has the responsibility to care for his mother."(3)

What is the relationship between Bahá'í inheritance laws
and those in Islam? The Qur'án prescribes the distribution of an
estate amongst certain relatives and the proportion of the estate willed
to each (4:11-13). Since not all possibilities are expressly legislated
in the Qur'án, a complex science of inheritance has arisen as a
special branch of Islamic law. There are a number of fundamental Islamic
rules that are relevant in the light of the Bahá'í laws.
The amount of a willed legacy is limited to no more than a third of the
estate after all debts are paid. The Qur'án allots shares to eight
relatives, namely the son, daughter, mother, father, husband, wife, brothers,
and sisters. Another rule is that the male relatives, in general, receive
twice as much as female relatives of the category. Non-Muslims are excluded
unless a bequest is specifically made.(4)
On first viewing, there appear to be a number of similarities with Bahá'í
intestate laws: the inheritance of non-believers, the categories of the
recipients, and the greater share of male heirs. However, there are important
and subtle departures. It is interesting that the Aqdas adds the category
of teacher to those entitled to inheritance. And the intestate laws increase
the share of women heirs: children, whether male or female, receive the
same share, as do husband and wives. Mothers receive 82% of what
fathers do; sisters 71% of brothers.

The most important difference compared to Islamic laws is that the Bahá'í
Writings specifically state that every Bahá'í is obliged
to leave a will, disposing of one's wealth in any way one wishes. Nowhere
does Bahá'u'lláh suggest or advise that the intestacy pattern
should be used as a model for wills. Rather, it has been argued that the
intestate inheritance laws should be viewed in their historical context.(5)
This is suggested by considering the intestate provisions for non-Bahá'í
inheritors. The Aqdas states that non-Bahá'ís do not inherit
when a Bahá'í dies intestate and the entire estate reverts
to the House of Justice. A non-Bahá'í wife, son, daughter,
grandchild, teacher or any other non-Bahá'í who would normally
be a beneficiary from the will receives nothing. Shoghi Effendi, in a letter
written on his behalf, has stated that, "it is always possible for a Bahá'í
to provide for his non-Bahá'í wife, children or relatives
by leaving a will. And it is only fair that he should do so."(6)
Therefore, by stating that "it is only fair" for Bahá'ís
to provide for non-Bahá'í relatives in their wills, the Guardian
highlights the principle of justice, and indicates that the intestate provisions
in the Aqdas are not normative. This questions Esslemont's suggestion that
"Bahá'ís will naturally be influenced, in making their wills,
by the model Bahá'u'lláh has laid down for the case of intestate
estates."(7) Rather the laws apply to a
specific situation – what happens when a Bahá'í dies without
a will.

This specific provision may also have been intended for a limited period
of time. All Bahá'ís are required by the Aqdas to write a
will (K109). We can assume that all Bahá'ís would fully observe
these laws in the future through universal literacy and education. An increasing
awareness of Bahá'í law in conjunction with the maturation
of those institutions that would assist Bahá'ís in observing
them, would increase the likelihood that Bahá'ís of the future
will write wills. These and other factors would seem to indicate that the
laws of intestacy may become irrelevant in the future. Why then do they
exist at all?

The Aqdas was revealed around 1873 by Bahá'u'lláh in response
to the repeated requests of Iranian Bahá'ís as to how they
should arrange their affairs.(8) These early
believers found themselves in the position of no longer being Bábís
or Muslims – and, in many cases, being cast out of their families as a result – but
still being forced to live by Islamic laws for lack of an alternative.
Under these conditions, when a believer died intestate, which was invariably
the case, the surviving Bahá'í family would have had to apply
Islamic laws of inheritance or rarely Bábí law; no secular
civil laws existed. The need for a Bahá'í law to address
this temporary situation was both extreme and immediate. The laws of inheritance
in the Aqdas may have been revealed to fill this demand.(9)
The fact that Bahá'u'lláh was pressed to reveal some temporary
laws about inheritance in Adrianople is an indication of how urgent this
particular question was among the early Bahá'í community
(Q100). It also sets a precedent for the revelation of temporary inheritance
laws, a precedent continued in the Aqdas. The law as revealed in the Aqdas
itself makes no provision for a personal will. It is only with Questions
and Answers that Bahá'u'lláh makes the statement that
"A person hath full jurisdiction over his property" (Q69).

There are other parts of the Aqdas that can also be seen to be relative
to specific contexts. For example, Mírzá Yahyá is
addressed at one point (K184); there are prophecies about Khurásán
and Kirmán (K94, K164); the prohibition of the use of public pools
of Persian baths (K106); the annulment of the obligation to perform the
Muslim Prayer of the Signs (K11); the Bábí laws on the destruction
of books, the prohibition of marriage to non-believers, the restriction
on travel, and the prohibition of questioning the Founder of the Faith
are all abrogated in the Aqdas (K77, K139, K131, K126). Significantly,
Bahá'u'lláh enjoins the believers to recite an obligatory
prayer in the Aqdas which he later changed (n9).(10)
The latter is an example of the specifics of an Aqdas law that was temporary;
however, the injunction to obligatory prayer remains.

This line of thinking would suggest that the intestate laws of inheritance
were given to address a specific and temporary need of believers living
in Muslim countries at the end of the nineteenth century. It would therefore
be unusual if the laws did not take into account the patrilineal patterns
of those societies. But Bahá'u'lláh seems deliberately and
specifically to have added provisions to this law that would lead to its
abandonment. To an extent, it is analogous to the marriage law in the Aqdas
which appears to permit bigamy. However, as bigamy is conditional on justice,
it is not permissible: "The fact that bigamy has been made dependent upon
an impossible condition is clear proof of its absolute prohibition."(11)
Similarly, in the case of the inheritance laws, outside of their immediate
historical context, they depend on an unlikely condition – that a Bahá'í
would not write a will in his or her lifetime. Shoghi Effendi writes that
every "Bahá'í is permitted in his will to dispose of his
wealth in the way he wishes" taking into account moral and spiritual principles.(12)
As for marriage, the principle of justice is pre-eminent among these.

The historical context may also aid in understanding the laws exempting
women from obligatory prayer and fasting during menstruation, and the exemption
from pilgrimage. Armstrong-Ingram argues that for Middle Eastern Bahá'ís
of Muslim background, carrying out the central religious practices of their
faith during menstruation "would have been repulsive, including to the
women themselves."(13) He argues that by
not making it obligatory, it provided a bridge for those attempting to
move from an Islamic cultural heritage into Bahá'í patterns
of religious observance. Similarly, the exemption from pilgrimage may be
related to the dangers facing women at the time. Travel anywhere would
have been risky in the nineteenth century, "but pilgrim routes were especially
preyed on by brigands. Women who were not able to travel with the substantial
protection provided by wealthy families were particularly vulnerable to
robbery, murder, and rape."(14)

Laws encapsulate principles. The marriage law encapsulates an inviolable
spiritual principle. Bahá'í inheritance laws should also
reflect the principles of fairness and justice. In order to do so, the
laws for intestacy in the Aqdas must be seen in their appropriate historical
context.

End Notes

From a letter on behalf of the Universal House of Justice to an individual believer dated 24 July 1975.
Linda and John Walbridge, "Bahá'í Laws on the Status of Men," World Order 19.1/2 (Fall 1984/Winter 1984-85): 25-36.
From a letter on behalf of the Universal House of Justice to an institution dated 28 December 1980.
The Encyclopedia of Religion. Vol. 7. S.v. "Islamic Law: Personal Law," by M.H. Kamali. Ed. Mircea Eliade et al. New York: MacMillan, 1987: 446-53; The Concise Encyclopaedia of Islam. S.v. "Inheritance." Ed. C. Glasse. London: Stacey International, 1989: 188-9.
This concept of the historical relativity of the inheritance laws of the Aqdas is adapted and developed from Anthony Lee's response to the Walbridges paper which was published in "A Question of Gender," Dialogue (Summer/Fall 1987): 32-34. I am grateful to him for constructive comments on earlier drafts of this essay.
Shoghi Effendi, Dawn of a New Day (New Delhi: Bahá'í Publishing Trust, 1970) 77.
John Esslemont, Bahá'u'lláh and the New Era, rev. ed., (Wilmette: Bahá'í Publishing Trust, 1980) 146.
Bahá'u'lláh, in Synopsis and Codification of the Laws and Ordinances of the Kitáb-i-Aqdas (Haifa: Bahá'í World Centre, 1973) 3.
It is possible that, in the context of early believers, the intestate provisions for non-Bahá'í relatives applied to the situation where a newly converted Bahá'í was thrown out of his or her family for leaving their family's traditional religion of Islam. Then it would not necessarily be unfair if these relatives were not included in the estate.
I am grateful to Juan Ricardo Cole for bringing this to my attention.
'Abdu'l-Bahá, qtd. in The Kitáb-i-Aqdas (Haifa: Bahá'í World Centre, 1993) 206.
Shoghi Effendi, qtd. in Aqdas 182.
R. Jackson Armstrong-Ingram'sresponse in "A Question of Gender," Dialogue (Summer/Fall 1987): 19-25.
Armstrong-Ingram, "A Question" 21. This would be one response to Bahiyyih Nakhjavani's essay on "Exemption" in which she points out, "Women in the twentieth century, in the West, with access to air travel, medical services, a normal body and a modest independence, may wonder about being singled out and chosen for this dubious distinction" (The Bahá'í Studies Review 3.1 [1993]: 75-8).

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-- Inheritance (Used by permission of the curator)