How Muslim Couples Unintentionally Sidestep Islamic Inheritance (even with a will)
When Aisha and Ibrahim bought their $500,000 Calgary home five years ago, they did what every home buyer does: went to a lawyer’s office, signed a stack of papers, and got the keys.
Somewhere in that stack was a land title document that indicated, in plain sight, three words: “as joint tenants.”
Their lawyer explained this briefly. He said that as “joint tenants”, when one spouse dies, the house automatically goes to the other spouse. There’s no need to go through the courts or wait for a will to be processed.
This legal structure is how most co-owned homes are titled because it’s the fastest and cheapest way to transfer property ownership when one owner dies.
But that efficiency comes with a set of assumptions about ownership that are fundamentally in tension with Islamic principles.
A Medieval Legal Fiction
To understand why this matters, we need to go back to medieval England.
In 13th-century feudal society, death created expensive problems for landowners.
Let’s say two brothers, Edmund and Geoffrey, owned a family farm together. Each owned a distinct 50% share.
When Edmund died, Geoffrey retained his 50% stake in the farm and Edmunds’s share had to pass through the feudal court system.
There were several issues with this: first, feudal lords claimed fees and obligations. Second, Edmund’s sons each inherited a portion of his half, fragmenting the valuable farmland.
The feudal inheritance problem: Edmund's death fragments the property among his heirs, creating a slow and expensive transfer process.
The legal process took months and drained the family's resources. Meanwhile, the farm sat in limbo. Geoffrey couldn't make decisions about the whole property, and Edmund's sons couldn't productively use their small, fragmented shares.
Medieval lawyers invented a workaround: what if multiple owners could be treated as "one person" for legal purposes?
Instead of owning distinct shares - Edmund with his 50%, Geoffrey with his 50% - they created a legal fiction: both brothers would own the entire property, 100%, simultaneously.
This is undivided co-ownership, or joint tenancy. Neither brother owns half. Both brothers own the whole and legally speaking, they are treated as a single, unified owner.
If that sounds impossible, it's because it is: two people cannot each own 100% of the same thing. But the law could pretend they did.
And that legal fiction, called Joint Tenancy with Right of Survivorship (JTWROS), would solve Edmund and Geoffrey's problem.
When Edmund dies, the property doesn't pass through a complicated estate process.
Because Edmund and Geoffrey were treated as one owner, and Geoffrey is still alive, the unified owner still exists. Edmund's share doesn't transfer to anyone. It simply ceases to exist and Geoffrey continues as sole owner of the entire property
Under joint tenancy, Edmund's death doesn't fragment the property. His share simply vanishes, and Geoffrey owns 100%. No heirs or estate.
Why Muslims Didn’t Need a Workaround
The problems that undivided co-ownership were designed to address weren’t really issues in Muslim-majority lands.
In Muslim lands, property passed directly to heirs according to Qur’anic mandates, with no feudal lords claiming fees or creating delays. Inheritance was immediate and automatic, with no legal limbo. And crucially, Islamic law recognized real co-ownership without needing to pretend multiple owners were “one person.”
When two people own property together, each owns a distinct, calculable share, even if that property isn’t physically divided. You may not be able to point to “Aisha’s half” and “Ibrahim’s half” of the house. But conceptually, Islamically, each owns a specific percentage.
This system reflects a deeper principle: in Islam, individuals retain their personal right to ownership - married or not. Sharing between spouses is encouraged and praiseworthy, but shared ownership is still distinct and divisible. Each person’s share remains calculable, ensuring that when death comes, their portion can be distributed according to Qur’anic mandates.
In other words, in Islamic Law, there is no automatic survivorship mechanism. While alive, you may co-own property with others. But your portion remains clear and distinct, so that when you die, your share is divided equitably among your Qur’anic heirs.
The Misalignment
For most Muslim couples who own a home in Canada today, their home ownership is governed by a 13th-century legal fiction designed to circumvent inheritance entirely.
If Ibrahim and Aisha’s $500,000 home is held as joint tenants, and Ibrahim dies, what legally happens?
The medieval legal fiction activates. Because they were “one person,” and that person still exists (as Aisha), Ibrahim’s share doesn’t enter his estate. It vanishes. Aisha becomes sole owner of the entire $500,000 property automatically.
For Muslim couples using joint tenancy: Ibrahim's death gives Aisha 100% legally. But because they never defined their shares, no one knows what Ibrahim's heirs (including Aisha) should receive Islamically.
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Now, could Aisha voluntarily distribute half the house value to Ibrahim’s heirs according to Islamic law? Yes, absolutely. And many surviving spouses would want to do exactly that.
But here’s the deeper problem: do Aisha and Ibrahim even know what their shares are?
Does Ibrahim own 50%? Or did Aisha contribute more to the down payment, making her share 60%? Did Ibrahim inherit money from his parents that funded part of the purchase, making his share 70%? Did one spouse sacrifice career earnings to raise children and how does that factor into ownership?
Most couples have never had this conversation. And joint tenancy lets that ambiguity persist because the law treats them as “one person” anyway.
Then death comes. The surviving spouse inherits the entire house legally. And only then does the family discover that no one actually knows what the deceased owned Islamically.
And you can’t divide what was never defined, especially not after death, when one party can no longer clarify what they believed they owned
The Conversation You Need to Have
How do Ibrahim and Aisha fix this?
There are various legal options available—from tenancy in common to formal documentation strategies. But before any of those matter, there’s one unavoidable, non-negotiable first step:
Ibrahim and Aisha need to have a conversation.
They need to determine what their percentage share of the property actually is. They must talk about it.
And this is a problem. Because, as we've previously explored,Muslim couples often lack financial clarity. The legal structures we’ve inherited - whether Western joint tenancy or cultural assumptions about nafaqah - **allow ambiguity to persist. Couples can go years, even decades, without defining what each spouse actually owns.
And you can’t distribute what was never defined.
So before any legal restructuring, before any estate planning documents, Ibrahim and Aisha need to agree: What percentage of this home does each of us own?
What did each contribute to the down payment?
What does each contribute to the mortgage?
If one spouse stayed home with children, how do they value that sacrifice?
Did family gifts or inheritance from one side fund part of the purchase?
The conversation might reveal: “We’ve both contributed equally, so 50/50 makes sense.”
Or it might reveal: “Actually, when we factor everything in, it’s more like 60/40.”
Any answer is fine. What matters is that they have an answer.
They can use tools like the Islamic Will Workbook to help work through these questions together.
Once they’ve determined ownership percentages, they face a second decision: How will this asset be distributed after death?
Here they have options:
Option 1: Voluntary Distribution
Leave the title as joint tenants. The surviving spouse legally inherits the entire home, but knowing before Allah that their deceased spouse owned X%, they voluntarily distribute that value to the Islamic heirs according to Qur’anic mandates.
Option 2: Legal Restructuring
Convert the title to “tenancy in common”, the less common but legally enforceable way to define distinct, inheritable shares. When one dies, their portion automatically enters their estate for distribution.
Neither option is inherently better. What matters is that the choice is conscious, informed, and documented.
Manage your spending without extravagance so you do not need others, for preserving wealth is part of the faith, and leaving it for your heirs is better than needing others
Ibn al-Jawzi (510–597 AH / 1116–1201 CE) advice in Lafdat al-Kabad fi Nasihat al-Walad (Heartfelt Advice to My Son )
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