Can a mortgaged property be given as a gift to the wife.
Mu' meneen Brothers and Sisters,
As Salaam Aleikum wa Rahmatullahi wa Barakatuh. (May Allah's Peace, Mercy and Blessings be upon all of you)
One of our brothers/sisters has asked this question:
Salaam. My question is can a house which at the time was mortgaged be given as a gift to the wife. The house is under both our names. My husband recently passed away but some time before he passed away he told me he was entitled to death in service at work basically the company he was working for had some job perks and one of them was death in service he never contributed anything towards it. He told me if anything did happen to claim the money pay off the mortgage and then the house is mine and the kids and then to distribute the remaining money from the death in service to the people entitled in his will which would be both his parents, his 2 sons and me. Is the house mine and the kids or would it have to be put as part of his estate? Also can the death in service be claimed as something he had before he passed away with it being part of his job contract something he signed? JazakAllah.
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Sister in any case whatever your husband receives as death in service should be used to first pay off his debts which will include the mortgage. If the property is in both your names and you had agreed that you would pay half the mortgage installments then the amount you receive from your husbands death in service entitlement should be used to pay his part of the debt only. This is if you were also earning and there was an agreement between the two of you.
Technically the property belongs to both of you unless you have a written statement from your husband that in the event of his death it would be yours and your childrens and that the death in service amount should be used to pay off the full mortgage. Verbal statements to you alone cannot be valid without proper witnesses.
As it stands the half of the property should be added to his assets and distributed as per Shariah laws which will include you, your children and his parents. If his parents of their own will wish to forgo their share in the property considering you and the children, they are well within their rights.
We must however state that the taking out a mortgage loan to buy a house is strongly forbidden in Islam. All interest bearing loans are haraam
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