Is a bequest made for the fetus a pregnant woman is carrying valid?

General Chapter

Al-Mughni

Book of Bequests

Book 31 · Issue 1 · Bab 1

Open in Qurani

Primary text

The bequest made for what a pregnant woman is carrying is invalid. This ruling is based on the principle that a bequest (*wasiyya*) is a transfer of ownership, which cannot be made to something non-existent. This is analogous to inheritance (*mīrāth*); only existing heirs inherit from the deceased, not a fetus unless it is already in existence. The validity of the inheritance of blood money (*diyyah*) which is determined after death, despite being established through bequest, serves as an exception because it is an established right that can be quantified after the death of the cause.

Supporting text

Some scholars among the companions of Imam Al-Shafi'i hold that such a bequest is valid, drawing an analogy with a bequest made for the fetus carried by a female slave (*jāriya*).