How is the estate divided among living heirs when one potential heir is a missing person?
Chapter on Distant Kindred (Dhawu al-Arham)
Al-Mughni
Book of Inheritance Shares (Farā'id)
Primary text
The consensus among jurists is that only those heirs who are alive on the day the missing person's estate is divided inherit from that estate; none who died before that day inherit. Regarding an estate where one heir is missing, the established opinion of Ahmad and most jurists is that each definite heir receives their share based on the assumption of life, and the missing heir's portion is held in trust until his status is determined or the waiting period ends. The matter is then resolved by calculating shares under both the life scenario and the death scenario, taking the lesser share for the living heirs, and holding the remainder.
Supporting text
Ibn al-Labban preferred that the heirs who are certain of their inheritance (those whose share does not depend on the missing person's status) may agree to settle for a lesser amount than their share under the life scenario, as the surplus ultimately belongs to them. Al-Wani rejected this, arguing that certainty (the life scenario) should be upheld, and only the missing person's share should be held. The text supports the first approach, allowing settlement for the surplus beyond the missing person's certain share because the right to that surplus is uncertain and contradicted by the probable death, thus resembling the holding of shares related to pregnancy.