The following is the translation of an Arabic Q&A from the website of Sheikh Ata' Abu Rashta.
بسم الله الرحمن الرحيم
It is mentioned in the book “The Ideal Economic Policy”, page 105, line 5 (Arabic), the text states that: as for Dar Al-harb, anyone who does not hold citizenship of the Islamic State, whether Muslim or non Muslim is Ajnabi (foreigner) and is legally treated as the hostile except that a Muslim’s blood and property does not automatically become permissible. As for the rules of property as well as all other ones, he is treated similar to a non-Muslim and is not entitled to maintenance nor can he inherit from or bequeath any citizen of the Islamic State.
Hence the question: Is Dar (Abode/residence) of a person being outside the Islamic state is a reason for denying him the right to inheritance, if so, then Dar becomes similar to murder, slavery and belonging to a different religion, (all of which also deny a person the right to inheritance). For example, let us assume that a Muslim man lives in Dar Al Kufr and his Muslim father lives in the Islamic State and has passed away; what then is the evidence that the son does not inherit from his father, and whether or not is he entitled to? Since the Prophet (saw) said:
“إن الله أعطى كل ذي حق حقه" "Allah gives everyone his due right".
Forbiddance (Denial of inheritance here) is due to his absence which obligates the nullification.
The factors that obligate the denial of inheritance are three and are agreed upon by the four Imams: slavery, murder, and the difference of religion. However, they differed on other factors like apostasy, living outside the Islamic State etc., these factors require detailed study…
We consider living outside the Islamic State as a factor to deny share in inheritance: i.e. if a person lives outside the Islamic State, he is not entitled to inherit from or bequeath a person living in the Islamic State, and what we mean by ‘living in the Islamic State’ is that he should be permanently living in the Islamic State and not simply one who visits the Islamic State for some purpose and then goes away…However because an Islamic State is not existing presently, there is no such difference between any two countries existing in the Muslims’ lands today like Syria and Iraq for instance…This is because, the original requirement is to have only one Islamic State, hence this difference does not deny a person his share in inheritance.
As for What prevent from inheritance due to living in a different country is the existence of the Islamic State and a Dar ul Harb and the Muslim living in the Dar ul Harb does not migrate to the Islamic State but continues to remain a ‘citizen’ of the Dar ul Harb. In such a situation, living outside the Islamic State would be a factor to deny him inheritance. This is because, Allah (swt) has refrained us from such ties between those who migrated (to the Islamic State) and those who do not migrate to (the Islamic State). He (swt) said:
﴿وَالَّذِينَ آمَنُواْ وَلَمْ يُهَاجِرُواْ مَا لَكُم مِّن وَلاَيَتِهِم مِّن شَيْءٍ حَتَّى يُهَاجِرُواْ﴾
(And as to those who believed but did not emigrate (to you O Muhammad), you owe no duty of protection to them until they emigrate).
Hence, when the Islamic State does exist, and a resident of the Dar ul Harb does not migrate to the Islamic State but continues to hold the citizenship of the Dar ul Harb, then the above command is applicable to him, i.e. his continued residence in the Dar ul Harb without migrating to the Islamic State, prevents him to acquire inheritance. However, there is an exception to this. That is: if a tenable reason necessitates his continued residence in the Dar ul Harb, as detailed in the Shakhsiyyah al Islamiyyah (Vol: 2, Chapter on Migrating from Dar ul Harb to Dar ul Islam), especially as mentioned the following:
“Except a person who can afford to openly declare his deen and can practice the required Shar’ii commands and has the capabilities to convert the place of his residence from being a Daru ul Kufr to Dar ul Islam, either all by himself or under a group (Kutla) including Muslims from his Dar ul Kufr, or with the help of Muslims outside his Dar ul kufr, or in cooperation with the Islamic State, or any other means, then in such a situation, it is not permissible for him to migrate from Dar ul Kufr to Dar ul Islam. Rather, in such a situation he is obliged to work in order to convert the Dar ul Kufr to Dar ul Islam and is prohibited to migrate from it.” [Reference concluded].
Continued residence of such persons and their likes in the Dar ul Kufr is legitimate and does not affect their inheritance rights.
Similarly, we reproduce some of what is mentioned in the preface (section II, article: 189):
“…thus, if the Dar ul Islam exists, then settling in Dar ul Kufr is Haram for the one who is obliged to migrate. In addition to that, settling and residing in Dar ul Kufr renders a Muslim as people of Dar ul Kufr and the rules of Dar ul Kufr, as applicable to it due to its relations with Dar ul Islam and due to Islamic State’s relations with other people, are applied to him. So the hudood are not carried out against him “so long as he is settled in Dar ul Kufr since he is not under the authority of the Muslims”. Similarly, Zakat is not received from him, nor does he inherit from someone residing in Dar ul Islam, nor is he obliged to pay maintenance to anyone residing in the Islamic State whom he was required to pay maintenance if he were living in Dar ul Islam. This is because the Shar’ee rules are not applied to the people of Dar ul Kufr, and hence their rights are not similar to those of Muslims nor are their obligations. The evidence for this is that the Muslims do not demand from the people of Dar ul Islam to merely accept Islam, but they are also required to enter the jurisdiction of the Islamic authority. Sulaiman ibn Buraidah narrates on the authority of his father who says: that when the Messenger of Allah (May peace be upon him) appointed anyone as leader of an army or detachment he would especially exhort him to fear Allah and to be good to the Muslims who were with him. He would say: Fight in the name of Allah and in the way of Allah. Fight against those who disbelieve in Allah. Make a holy war, do not embezzle the spoils; do not break your pledge; and do not mutilate (the dead) bodies; do not kill the children. When you meet your enemies who are polytheists, invite them to three courses of action. If they respond to any one of these, you also accept it and withhold yourself from doing them any harm. Invite them to (accept) Islam; if they respond to you, accept it from them and desist from fighting against them. Then invite them to migrate from their lands to the land of Muhajirin and inform them that, if they do so, they shall have all the privileges and obligations of the Muhajirin. If they refuse to migrate, tell them that they will have the status of Bedouin Muslims and will be subjected to the Commands of Allah like other Muslims, but they will not get any share from the spoils of war or Fai' except when they actually fight with the Muslims (against the disbelievers). [Narrated by Muslim]. So the Prophet said: “Then invite them to migrate from their lands to the land of Muhajirin and inform them that, if they do so, they shall have all the privileges and obligations of the Muhajirs. [Narrated by Muslim].
This text necessitates migration so that they can have similar rights and obligations as ours, i.e. text necessitates migration so that the rules to be applicable to them." [Reference concluded].
Thus, living outside Dar ul Islam prevents applicability of inheritance rules in line with what we have mentioned.
23rd Sha’baan 1432 A.H
24th July, 2011 C.E