What is the inheritance division if a man divorces one of two wives without specification, where he had consummated the marriage with one but not the other?
Chapter on Distant Kindred (Dhawu al-Arham)
Al-Mughni
Book of Inheritance Shares (Farā'id)
Primary text
If he has two wives, consummated with one and not the other, and divorces one without specification, the lot determines which wife is subject to the divorce ruling, and the other remains under the ruling of marriage. The wife with whom consummation occurred receives three-fourths of the inheritance if the husband dies during her waiting period, and the other receives one-fourth, as the consummated wife certainly gets half, and the other half is disputed between them.
Supporting text
The view of the scholars of Iraq holds that the consummated wife receives three-fourths and the other one-fourth. Al-Shafi'i holds that the consummated wife receives half, and the second half is suspended. If both were consummated, and he stated during his fatal illness, 'I intended this one,' and then died during her waiting period, his statement is not accepted, as the declaration of divorce during illness is treated like the divorce itself. This is the position of Abu Hanifa and Abu Yusuf. Zufar holds that his statement is accepted, and the inheritance belongs to the other wife, which aligns with the implication of Al-Shafi'i's opinion. If the sick man had another wife besides these two, she receives half the inheritance, and the remaining half is for the two disputed wives. Al-Shafi'i holds that half of that remaining portion is suspended.