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Fatwa CenterIssue of Husband Gifting the House to His Wife in a Fearful Illness or when He Is Still Residing in It
Question
I have few questions about the property of my father. My father has 3 sons from his 1st marriage and after his first wife died, he married second time and I'm the only son from his second wife. My half-brothers treat me and my mother in a very rude manner and are in very bad terms with us. Recently from my fathers property, he gave one flat each to his 4 sons. My father, a few years ago had gifted an independent house to my mother. My father is still alive and has a plot and an ancestral house in his name. my questions are :-1) After my father's death, do my half-brothers have any right on the independent house gifted to my mother ? 2) After my mother's death, do my half-brothers have any right in asking share in her property (the gifted independent house, her jewellery, etc) ?
Answer
All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad 
is His slave and Messenger.
If the gift is given according to its Sharee’ah’s conditions, then the gifted house ownership transfers to the gift recipient. The donor’s heirs have no right to it after his death because the house is excluded from the property of their inheritable person. Among the conditions for the validity of the gift is that the donor has given it while he/she is not in a hopeless illness, and the second condition is that the recipient of the gift should have taken possession of it.
If the gift is a house given from the husband to his wife, then the possession is not completed, according to the view that we adopt here in Islamweb, as long as the husband resides in the house with his wife, and this is the view of the Maliki School of jurisprudence.
Abu Al-Waleed Al-Baji said in Al-Muntaqa Sharh Al-Muwatta’:
If the gift is a house, there are two cases; either the house is resided or not resided by the donor. If it is resided by the donor, then the gift is not valid unless the donor vacates it. If the husband is the one who gifts the house to his wife and he continues residing in it with her, then that would invalidate the possession. Because the husband is obliged to provide the wife with housing; i.e., if the wife resides in the house while the husband stays with her, that means there is no control for her over it. It is the husband who disposes of the house; hence, it is valid to be possessed by the husband while the wife stays with him, while it is not valid to be possessed by the wife while the husband stays with her.” [End of quote]
However, some jurists held that the gift can be made between spouses without possession.
Al-Jami’ Li ‘Uloom Imam Ahmad reads:
“Ishaq ibn Mansour said: There is no possession between a man and his wife if he gifts her or if she gifts him; he said: This is what we say about the gift if it is defined and known. Ishaq ibn Mansour said: I said: If a man gifts something to his wife without handing it over to her, is it impermissible? He said: There is no issue, there is no possession between him and her while she is with him in the house. We say about the gift: If it is known, then it is permissible.” [End of quote]
Based on this, if your father gifted the house to your mother while he was not in a fearful illness, and he vacated the house and did not live in it and then died, then, in this case, the house belongs to your mother, and your father’s heirs have no right to it. But if he gifted the house to her while he was in a fearful illness, then the house belongs to the heirs; likewise, if he gifted the house to her while he is not in a fearful illness, but he still resides in it, according to the view that we adopt here in Islamweb.
Your stepbrothers have no right to your mother’s inheritance because she is not their mother, and the stepson is not an heir to his stepmother.
Allah knows best.
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