Inheritance and Succession in the Moudawana
If you have just lost a loved one, or if you are planning for your family's future, the succession rules of the Family Code (Moudawana, Law No. 70-03) decide who inherits, in what order, and in what shares. These are not rules you negotiate. They are mandatory, and they follow a precise logic. Here is what you need to understand before you find yourself before an adoul or the family court.
The essentials in brief
In Morocco, one inherits through marriage or through kinship: these are legal grounds, and no one may renounce them or deprive another of them [1]. Before any distribution, the estate first serves to settle five claims in a strict order: charges on the assets, funeral expenses, debts, a valid will, then succession shares [3]. A will is capped at one third of the assets [4]. Heirs receive either a fixed share (fardh) or the remainder (taâsib) [6][7], from among six possible fractions [8]. A case-by-case check remains essential.
Who inherits, and why
The Moudawana does not let you choose your heirs. Entitlement to inherit derives from two grounds, and two only: the conjugal bond and the bond of kinship. These are legal grounds, not contractual or testamentary ones [1].
A direct consequence, often misunderstood: neither the heir nor the deceased may renounce this status, nor relinquish it in favour of a third party [1]. You do not "disinherit" a son by a mere declaration. You do not name yourself an heir by contract.
The conjugal bond applies as soon as the marriage is valid, even if not consummated, so long as the union lasts until death [1]. Kinship is the broadest ground: descendants without limit, ascendants, brothers and sisters, their children, uncles and nephews, subject to an impediment or an exclusion [1].
But two barriers cut off any succession entitlement. There is no succession between a Muslim and a non-Muslim [2]. And a person whose paternal filiation has been legally disavowed does not inherit from the author of the disavowal [2]. A surprising detail: if a person embraces Islam after the death but before the distribution, they still do not inherit, because the condition of religion is assessed at the moment of death [2].
Before counting shares, first verify the status of heir: it is what opens, or closes, the door.
What is settled before any distribution
A classic error: believing that the estate is distributed as is, debts included. False. The Moudawana requires five claims to be deducted, in this precise order, before a single dirham goes to the heirs [3].
First rank, the rights encumbering the real assets of the estate: usufruct, easements, mortgage, tax obligations [3]. Second rank, funeral expenses according to custom, without excess or stinginess [3]. Third rank, the debts of the deceased, whether due or term, even if their settlement exhausts the entire estate [3]. Fourth rank, the valid and enforceable will [3]. Only fifth rank, what remains is divided among the heirs [3].
The order is not decorative. Debts take priority over the will: a creditor comes before a legatee. And the liquidation itself has a cost, which the estate bears [12].
Before claiming your share, make sure these first four ranks have been honoured: what remains to be divided is the net estate, not the gross estate.
The will: useful, but limited to one third
Many believe they can bequeath everything to whomever they wish. The Moudawana forbids it. A will is the act by which its author creates, within one third of his assets, a right enforceable upon his death [4].
The one-third cap is not arbitrary. The legislator set it relying on a saying reported by Saad Ben Abi Waqqas, who was told that one third "is a lot," because it is better to leave one's heirs comfortable than in need [4]. Beyond one third, the legacy spills over onto the share reserved for the heirs and is not enforceable as of right.
Form matters as much as amount. To be valid, a will must be the subject of an act recorded by the adouls, or by a duly empowered official authority, or a handwritten act of the testator signed by him [5]. A purely oral will is admitted only exceptionally, in case of compelling necessity preventing writing, and under the supervision of the judge who authorises its drafting and notifies the heirs [5].
If you wish to favour a loved one beyond what the law reserves for them, the will is your tool. But aim precisely: a poorly drafted legacy, or one exceeding one third, will run up against the legal distribution.
Fardh or taâsib: two ways of inheriting
Once the net estate is determined, how is it divided? The Moudawana distinguishes four categories of heirs: those who inherit by fardh only, those who inherit by taâsib only, those who combine the two, and those who inherit under one title or the other separately [6].
Fardh is a fixed share, determined in advance, allotted to the reserved heir [7]. Taâsib consists of receiving the remainder: what is left after the reserved heirs, served first, have received their shares [7].
The mechanism is clear. In the absence of fardh heirs, the entire estate goes to the heir by taâsib [7]. If there are reserved heirs but their shares do not exhaust the estate, the rest goes to the taâsib [7]. And if the reserved shares absorb the entire estate, the heir by taâsib is entitled to nothing [7].
Remember this hierarchy: fixed shares are served first, the remainder afterwards. The whole stake of a liquidation plays out in this order.
The fixed shares: six fractions, strict conditions
The fardh shares number six: one half, one quarter, one eighth, two thirds, one third and one sixth [8]. No other fraction exists in Moroccan succession law. But the allotment of each depends on precise conditions, tied to the presence or absence of other heirs.
Take the one half. Five heirs may claim it, and never unconditionally [9]. The husband inherits one half of his wife's estate provided she left no descendant with succession entitlement; otherwise, his share falls to one quarter [9]. The daughter inherits one half if she is alone, with no other child of the deceased and no brother who would shift her to taâsib [9]. The son's daughter, the full sister and the paternal half-sister are entitled to it in comparable configurations, always in the absence of the one who would exclude them [9].
The one-third share follows the same conditional logic. Three heirs may obtain it: the mother, provided the deceased leaves neither a descendant with succession entitlement nor two or more siblings; several uterine (maternal) half-siblings, in the absence of the father, the paternal grandfather and the children of the deceased; and the grandfather concurring with siblings, when one third is the most advantageous share for him [10].
Never read a fraction in isolation. An heir's share always depends on who else is present in the estate.
The mandatory legacy for grandchildren
One case deserves a separate mention, because it corrects a harshness of the rule. When a person dies leaving grandchildren born of a son or daughter who died before them or at the same time as them, these grandchildren are not forgotten: the law reserves for them a mandatory legacy [11].
Why "mandatory"? Because it does not depend on the will of the deceased: it is imposed as of right, to distinguish it from the voluntary legacy and from the assimilation of a child to an heir (Tanzil) [11]. The legislator adopted it by reference to Fiqh, in the interest of grandchildren who would otherwise be set aside by the presence of their living uncles and aunts [11].
This legacy bears on the available third of the estate, and no more [11]. If it concurs with an optional legacy within that same third, the distribution follows the rules applicable to legacies of the same rank [11].
If a parent died before the deceased, systematically check the rights of the grandchildren: this mandatory legacy is easy to overlook and heavy with consequences.
References
[1] Article 329 — Family Code (Moudawana, Law No. 70-03) [2] Article 332 — Family Code (Moudawana, Law No. 70-03) [3] Article 322 — Family Code (Moudawana, Law No. 70-03) [4] Article 277 — Family Code (Moudawana, Law No. 70-03) [5] Article 296 — Family Code (Moudawana, Law No. 70-03) [6] Article 334 — Family Code (Moudawana, Law No. 70-03) [7] Article 336 — Family Code (Moudawana, Law No. 70-03) [8] Article 341 — Family Code (Moudawana, Law No. 70-03) [9] Article 342 — Family Code (Moudawana, Law No. 70-03) [10] Article 346 — Family Code (Moudawana, Law No. 70-03) [11] Article 369 — Family Code (Moudawana, Law No. 70-03) [12] Article 384 — Family Code (Moudawana, Law No. 70-03)
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