Islamic estate planning is a complex process that not just any attorney practicing in the area of wills and estates can handle. Even though Islam is the second-largest religion in the world and is also the fastest-growing major religion, many attorneys are not well-versed in Islamic estate planning requirements. But, with nearly 3.5 million Muslims currently living in the United States, understanding these requirements is becoming increasingly important.
The significance of Islamic estate planning, especially an Islamic will, cannot be overstated. The requirement appears throughout religious texts. For example, the Prophet Muhammad stated, “It is not permissible for any Muslim who has something to will to stay for two nights without having his Last Will and Testament written and kept ready with him.” Within the Qur’an, Allah makes multiple commands regarding the necessity of preparing a will. In the event a Muslim dies without a will, however, strict Islamic inheritance laws come into play.
It would take volumes of texts to explain the universe of Islamic estate planning and inheritance laws. Thus, this article is intended only as a quick reference guide, specifically for Muslims living in the U.S. Readers are encouraged to contact our office with specific questions or estate planning needs.
Most Islamic and Muslim estate planning principles are derived from the Qur’an (primarily from Chapter 4, verses 11, 12, and 176) although other important rules are found in the Sunnah (the Prophet Muhammad’s sayings), the Ijma (the consensus of the scholars), and the Qiyas (deductive reasonings). Inheritances of Muslim-owned property are determined according to Sharia law.
One interesting aspect of estate planning for Muslims living in the United States is the concept of property passing between Muslims and non-Muslims. Generally speaking, Islamic inheritance law dictates that if a Muslim dies without a will, his estate cannot be inherited by a non-Muslim. Likewise, Muslims are not permitted to inherit the wealth of non-Muslims. These principles hold true even if the deceased and inheritor are related.
Notwithstanding these rules, a Muslim may bequeath a portion of his wealth to non-Muslims in limited circumstances. Specifically, an Islamic will may specify up to one-third of his estate be given to non-Muslims or others who would not typically be entitled to a share in that wealth (explained further below).
Also, a Muslim parent may not specifically exclude a Muslim child from his will just because that child is disobedient or otherwise considered unworthy. It is considered one of the kabā’ir (major sins) to do so. This is because once a Muslim dies, they are not believed to have any right or control over their earthly assets.
You can see from these brief examples just how important it is to understand all of the permeations of Islamic estate planning and inheritance laws before drafting the final documents.
Perhaps more than anything else, attorneys who work with Muslims must understand the importance of Sharia-compliant estate planning. The main reason for this is simple: if a Muslim dies in the United States without a valid will, state inheritance laws will control the distribution of his wealth. If a Muslim creates a will that complies with Sharia inheritance laws, however, that document will control how his assets are distributed, mostly without regard to state laws. In other words, proper estate planning will help a Muslim American stay in compliance with his religion even into death.
Sharia-compliant estate plans must include the following components:
- Debts and Obligations – “Marh”
Before a Muslim decedent’s estate is split among heirs and benefactors, it must be used to pay for things like “funeral expenses, debts, and other obligations.” Only after those things are paid can the remainder of the estate be distributed.
- Sharia Inheritance – “Mirath”
Sharia inheritance laws dictate that two-thirds of the decedent’s remaining estate must pass to certain prescribed heirs. There are many variables in determining which prescription applies, however. By way of example, consider this breakdown offered by a resource focused on Islamic inheritance:
A surviving husband’s share is 1/2 if there are no children and 1/4 if there are children. For a surviving wife, her share is 1/4 if there are no children and 1/8 if there are children. Other fixed shares are 1/6 for the father of the deceased, and 1/6 for the mother of the deceased. The rest goes to the children, with two shares for a son for every share for a daughter.
The estate planner must not only have a thorough understanding of Islamic inheritance laws but also of the decedent’s surviving relatives.
- The Wasiyya Bequest
What happens to the final one-third of the decedent’s estate? It may be used for a “Wasiyya Bequest.” These bequests are typically used to transfer part of the estate to those who could not otherwise receive a Sharia Inheritance (e.g., non-Muslims, charity, friends, organizations, or adopted children).
Like most of the other world religions, Islam requires that certain rituals be observed at the time of death and during a Muslim funeral service. Among them include the prohibition of cremations, the washing and draping of the body prior to burial, and the timing of burial, which should take place as quickly as possible after the person dies. Given that these rituals differ from many American funeral customs, the estate planning attorney should also include provisions in the will about the decedent’s specific desires for the funeral.
Islamic inheritance laws are complex and have been around for centuries. They are extremely important to observant Muslims. If you practice Islam and are looking for an attorney who will adhere to Islamic traditions in drafting your will, please visit our estate planning page and fill out the “Get in Touch” form in order to contact us.