Division of estate should be delayed for birth of unborn heir
25-11-2013 | 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 full brother) Number 2 (A nephew from a full brother) Number 6 -Does the deceased have female relatives who are entitled to inherit : (A mother) (A wife) Number 2 The number of pregnant wives 1 (A full sister) Number 4 - Information about the deceased’s debts : (Debts to people)
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.
Since the deceased has debts, it is an obligation to pay his debts first before dividing the estate among the heirs because the debts are given priority over the rights of the heirs in the inheritance. After paying the debts of the deceased, the heirs may divide the estate according to the Sharee’ah.
Since there is pregnancy in this case, it is better to wait to see the outcome of the pregnancy whether it will be born alive or dead, and if it is born alive, whether it is a male or a female, and whether it is only one child or more. We mentioned that it is better to wait for the delivery of the pregnancy so that the division of the estate would be done once and for all, as some scholars are of the view that it is forbidden to divide the estate if one of the heirs is unborn until he or she is born. Khaleel Al-Maaliki 
said in Al-Mukhtasar: “The division of the estate should be halted for pregnancy and the division of the property of a missing person should be halted until he is ruled dead.” The commentators said: “The well-known opinion is that if a person dies and leaves heirs and a pregnant wife or a slave girl who is pregnant from him, then the division of his estate is to be halted until the delivery of that pregnancy and the estate should not be divided before that.'” For more benefit, please refer to Fatwa 219166.
However, if the heirs insist on dividing the estate, then each existing heir should be given the lowest possible share, and those who are not affected by the existence of the unborn heir may take their full share. The share of the two male children should be held until the birth of the unborn child(ren) to be on the safe side. The mother is entitled to one-sixth of the inheritance as her share does not change with the outcome of the pregnancy, because if the fetus is born dead, she takes one-sixth of the inheritance due to the existence of the brothers, and if the pregnancy is born a male child or a female child, then the mother still takes one-sixth of the inheritance. Also, the two wives take one-eighth of the inheritance as this is the lowest possible share.
As for the remainder, it is to be held undivided. The brothers and the sisters will not be given anything until the delivery of the pregnancy. After the delivery, the division of the remainder of the estate should be re-examined. In this case, there will be a need to assume many possibilities and variables: if the fetus is born alive, and it is a male or two males, or a male and a female, then all the inheritance that is held undivided will be for him or them by way of Ta’seeb (that is, 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); and a male is to receive twice the share of a female. If the born child is a female, she is to get half of the estate, and if they are two females, then together they are entitled to two-thirds of it.
If the fetus is born dead, then the share of the two wives will become one-fourth of the estate (they would have already taken one-eighth). Then the remainder of the estate in all cases will be divided between the brothers and sisters by Ta’seeb, with any male receiving twice the share of any female.
It is for this reason that we refrained from dividing the inheritance once and for all, and we have only stated what fulfills the needs of the existing heir(s) of the division of the estate to help them know their current shares.
Allaah Knows best.