death. It is known that it was present by the fact that she delivers it within less than six months. If she delivers it after that, we consider: if she has a husband or master who has intercourse with her, it shall not inherit, unless the heirs acknowledge that it was present at the time of death. If she is not subjected to intercourse—either due to the lack of a husband or master, or because of their absence, or their avoidance of intercourse, whether due to inability, intent, or otherwise—it shall inherit, provided it does not exceed the maximum duration of pregnancy, which is four years according to the most correct of the two narrations, and two years in the other.
The second condition is that she delivers it alive. If she delivers it dead, it does not inherit according to all of them. There is disagreement regarding what confirms inheritance in terms of life. They agreed that if it cries out (istahalla), it inherits and can be inherited from. Abu Dawud narrated with his chain of transmission, from Abu Hurayrah, from the Prophet (peace and blessings of Allah be upon him) that he said: "If the newborn cries out, it inherits." Ibn Majah also narrated with his chain, from Jabir, from the Prophet (peace and blessings of Allah be upon him) the same. They disagreed regarding what is beyond crying out. A group said: It does not inherit until it cries out, and nothing else takes the place of that. Then they differed: what is crying out? A group said: It does not inherit until it cries out aloud. The well-known view from Ahmad (may Allah be pleased with him) is that it does not inherit until it cries out. This has been narrated from Ibn Abbas, al-Hasan ibn Ali, Abu Hurayrah, Jabir, Sa'id ibn al-Musayyib, Ata, Shurayh, al-Hasan, Ibn Sirin, al-Nakha'i, al-Sha'bi, Rabi'ah, Yahya ibn Sa'id, Abu Salamah ibn Abd al-Rahman, Malik, Abu Ubayd, and Ishaq. This is because the implication of the Prophet's (peace and blessings of Allah be upon him) statement, "If the newborn cries out, it inherits," is that it does not inherit without crying out. In a wording mentioned by Ibn Suraqah, from the Prophet (peace and blessings of Allah be upon him), he said regarding a newborn child: "If it emerges crying out, it inherits, its blood money (diyah) is complete, it is named, and prayer is performed over it. If it emerges alive and does not cry out, its blood money is not complete, and for it there is a ghurra (compensation): a male or female slave, upon the clan (aqilah)."
(14) In M: "yaqull" (it says), which is a distortion. (15) In M: "li-maghibatihima" (due to the absence of both). (16) In: Chapter on the newborn who cries out then dies, from the Book of Inheritance (al-Fara'id). Sunan Abi Dawud 2/115. As it was also recorded by al-Bayhaqi, in: Chapter on the inheritance of the fetus, from the Book of Inheritance. Al-Sunan al-Kubra 6/257. (17) In: Chapter on what has come regarding the prayer over the infant, from the Book of Funerals (al-Jana'iz), and in: Chapter on if the newborn cries out, it inherits, from the Book of Inheritance. Sunan Ibn Majah 1/483, 2/919.
