1244 - Issue: He said: "And if a woman performs Khul' (divorce for compensation) during her death-sickness (marad al-mawt) for more than his inheritance from her, the Khul' is valid, and the heirs have the right to have recourse against him for the excess."

The summary of the matter is that Khul' during illness is valid, whether the ill person is the husband, the wife, or both, because it is a transaction of exchange, so it is valid in illness, like a sale. We know of no disagreement regarding this. Then, if the ill wife performs Khul' with him for her inheritance from her or less, it is valid, and there is no recourse. If she performs Khul' with him for an amount in excess, the excess is void. This is the view of al-Thawri and Ishaq. Abu Hanifah said: He is entitled to the entire compensation; if she favored him, it comes from the third [of her estate], because he is not an heir to her, so her favoring him is valid from the third, like a stranger. From Malik, there is a position similar to the two schools of thought, and another report from him: It is assessed based on the Khul' of a woman like her. Al-Shafi'i said: If she performs Khul' for her dower of similar worth (mahr al-mithl), it is permissible; if it exceeds it, the excess is from the third. Our argument, that the dower of similar worth is not to be taken into account, is that the exit of the pudendum from the husband's ownership is not to be valued by what we have previously established, and considering the dower of similar worth is a valuation of it. As for the voiding of the excess, she is accused of intending through the Khul' to deliver something of her wealth to him without compensation, in a manner she would not have been capable of while he was an heir to her, so it is void, as if she had bequeathed to him or acknowledged a debt to him. As for the amount of the inheritance, there is no accusation in it, for if she had not performed Khul', he would have inherited his inheritance. If she recovers from that illness, the Khul' is valid, and he is entitled to everything she performed Khul' with him for, because we have established that it was not death-sickness, and Khul' outside of death-sickness is like Khul' in health.

1245 - Issue: He said: "And if he performs Khul' with her during his death-sickness, and bequeaths to her more than she would have inherited, the heirs have the right not to give her more than her inheritance."

As for his performing Khul' with his wife, there is no issue regarding its validity, whether it is for her dower of similar worth, more, or less, and it is not considered as part of the third, because if he divorced her without compensation, it would be valid, so for it to be valid with compensation is more appropriate. Also, the heirs do not lose anything by his Khul', for if he died while he had a wife, she would be separated by his death and would not transfer to his heirs.