How is the inheritance of a Khuntha (intersex person) determined if signs of gender do not appear upon initial examination or if they cannot urinate distinctly?
Chapter on Distant Kindred (Dhawu al-Arham)
Al-Mughni
Book of Inheritance Shares (Farā'id)
Primary text
If the Khuntha cannot be clearly identified as male or female, and in cases where the urine passage is unclear or exits from both passages equally without precedence, their status remains unresolved (mushkal) until maturity. If there is a need for the division of inheritance while they are minors, the parties receive the certain minimum share (al-yaqin), and the remainder is held until the age of maturity when signs of manhood (beard growth, seminal emission) or womanhood (menstruation, pregnancy, breast development) become manifest. The ruling is then applied accordingly. If the Khuntha dies before maturity or remains unresolved, they inherit half the share of a male and half the share of a female. This position is adopted by the majority, including Ahmad, Ibn Abbas, al-Sha'bi, Ibn Abi Layla, the people of Medina and Mecca, al-Thawri, and Abu Yusuf. This is reasoned by the equality of their two potential states, necessitating an equal division between the rulings attached to those states, similar to two claimants to a house without proof.
Supporting text
Some scholars, including Ali and al-Hasan, suggested counting their ribs, as women possess one more rib than men, which would resolve the issue if this difference were reliable. Jabir ibn Zayd suggested testing by having the Khuntha urinate against a wall; if it hits the wall, he is male, but if it drips between the thighs, she is female, though this method is not relied upon. Abu Hanifa ruled inheritance based on the worst possible case for the Khuntha, giving the remainder to other heirs. Al-Shafi'i and his followers gave the certain share and suspended the rest until certainty appeared or a settlement was reached.