Matrimonial regime and own assets: what enters the succession?

Classical fiqh knows no community of property between spouses: each spouse owns what he earns, buys and receives. The succession of the deceased therefore contains only his own assets.

The principle of separation

• The mahr belongs to the wife alone: "Give the women their mahr with a good heart" (sura an-Nisa 4); she disposes of it freely, and her marriage transfers nothing of her estate to the husband.
• Each one his earnings: "and do not covet that by which Allah has preferred some of you over others" (sura an-Nisa 32): the salary of the wife, her inheritances and her gifts remain hers; the husband has no right over them, and the reverse.
• The nafqa is not an investment: the spending of the husband for the household is a maintenance obligation, it creates no right over the assets of the wife.

This principle is the position of the classical manuals (Ibn Rushd, Bidayat al-Mujtahid; Ibn Qudama, Al-Mughni), and the contemporary codifications of Sunni countries have written it: article 49 of the Moroccan Family Code (law No. 70-03, 2004) states that "each of the two spouses has his own patrimony", with the possibility of a contract before the adoul for assets acquired together during the marriage.

The house bought by the couple

• The title in the name of one: presumed his property according to fiqh and civil law; contrary evidence (documented contributions of the other spouse: transfers, loan deeds, bank traces) can establish a real co-ownership.
• The purchase declared in indivision: each share follows its holder; at death, only the half of the deceased passes to his heirs, the other remains with the survivor: the solution that protects the surviving spouse.
• The joint account: presumed undivided between holders; documenting the contributions of each spares the dispute at death.

Harmony with civil regimes

• The civil community (default in France): the regime to which the spouses adhered through the civil marriage produces its effects and is respected; the civil succession is calculated after liquidation of the regime.
• Separation of property: possible through a marriage contract: it is the regime closest to fiqh, recommended to couples who wish it.
• The strategy of the couple: document the contributions, name each one on his accounts, plan the housing of the survivor through a clause: foresight replaces the dispute.

Practical note

At every major purchase, the question to settle in writing: to which patrimony does this asset belong? A documented answer (deed, account, agreement) is worth more than an intention.