چکیده:
Articles 905 and 949 of the Civil Code consider the sole husband as the heir to all of his deceased wife's estate; However, Article 949 only recognizes one-quarter for the wife and considers the rest of the husband's estate subject to Article 866. This distinction between husband and wife is based on the opinion of the majority of Imami jurists who return the excess from the husband's share to him and consider the excess from the wife's share to belong to the Imam. The Civil Code presents the same distinction, but considers the excess from the wife's share as ownerless property so that it reaches the public consumption under the supervision of the judge, while in jurisprudence this issue is disputed as to what the fate of the excess from the wife's share is? This article, while stating different theories, has clarified that the theory of the Civil Code is not actually the popular theory.
خلاصه ماشینی:
The Share of Inheritance for a Sole Spouse in Islamic Jurisprudence and Civil Law Mohammad Hassan Sadeghi Moghadam * Associate Professor, Department of Private Law, Faculty of Law and Political Science, University of Tehran Mohammad Mehdi Azizollahi Assistant Professor, Department of Private Law, Faculty of Law, Qom University (Date of Receipt: 2010/12/24 - Date of Approval: 2011/09/22) Abstract: Articles 905 and 949 of the Civil Code consider a sole husband as the heir to the entire estate of his deceased wife; however, Article 949 only recognizes one-quarter of the estate for the wife and subjects the remainder of the husband's estate to Article 866.
This distinction between husband and wife is based on the prevalent opinion of Imami jurists, who return the excess beyond the husband’s prescribed share to him, while considering the excess beyond the wife’s prescribed share as belonging to the Imam.
1- Jurisprudential Basis Jurists have discussed the issue of returning the excess to the wife alongside the issue of returning the excess to the husband, and four opinions have been reported in this regard: (Shahid al-Thani, 1398 AH: 82) 1- Returning to both absolutely; 2- Not returning at all; 3- Distinguishing between the time of the Imam’s occultation and his presence (peace be upon him).
2-Opposing Opinions Given the above details, an important point is that the theory of distinguishing between husband and wife and not returning the excess to the wife, even if it is popular among jurists, cannot be reflected in the law in this way; because the legislator must specify the place of consumption of the property and should not leave it in a state of ambiguity.
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