I am an estate-planning attorney. American law gives a wife up to 1/2 of her husband’s estate. A wife, according to Islamic law, receives 1/8 of the estate if there are children or 1/4 if there are no children. This issue is very sensitive for my Muslim American clients because a wife would have to waive her 1/2 share of the estate. Many of my clients choose to prepare a partial Islamic will in order to leave the wife’s 1/2 intact. Are there any Sharī‘a-compliant solutions to this concern?
Absolutely. Sharī‘a is anchored in divine justice and equity. There are several solutions for this situation.
First, Muslim scholars agree that a husband is free to voluntarily increase his wife’s mahr during the marriage. The mahr, or dowry, is a financial obligation that a groom must give a bride when they conclude the marriage contract. Any property of value can be a mahr. A woman’s mahr automatically becomes her separate property and is considered a debt upon the husband’s estate. Because the mahr is a debt upon the husband, the mahr must be paid from the gross estate before the prescribed shares are distributed to the Islamic heirs. So a wife will receive her mahr from the estate, plus her Qur’anic prescribed share.
Many Muslim scholars also agree that a husband is free to record in his will a moral/religious debt to compensate his wife for her financial and non-financial contributions to the marriage.
This moral/religious debt is paid from the gross estate as a debt before distributing the net estate to the Islamic heirs. So a wife will receive this moral/religious debt, plus her Qur’anic prescribed share.
To better understand moral/religious debts, let us review a story about an inheritance dispute that ʿUmar ibn al-Khaṭtāb resolved: A husband passed away with no children. Strictly speaking, the wife’s inheritance would be 1/4. The widow asked ʿUmar ibn al-Khaṭtāb for a ruling. She said: “Ameer Al Mu’mieen, you know that my husband and I worked together in the business. I would stay up all night sewing and making the clothing that my husband would sell in the market.” Al-Khaṭtāb gave her 1/2 of the estate for all her work, plus 1/4 for her prescribed share.
So husbands may leave their wives a moral/religious debt and/or increase their wives’ mahrs on top of their prescribed share. We do not believe this violates the Sharī‘a. Allah knows best.
To better protect the financial security of your wife should you predecease her, use our ISLAMIC WILL software to prepare your own customized, Sharī‘a-compliant estate plan that is legally valid for your state, which will allow you to increase your wife’s mahr and/or acknowledge a moral/religious debt owed to her.
I am an American Muslim. Does the Sharī‘a require me to have a will?
[embed]https://www.youtube.com/watch?v=ZyzVXkddFsg[/embed] Many Muslim scholars living in the United States suggest that American Muslims are obligated to have an Islamic will, because without one, the estate will be divided according to non-Islamic laws. If you leave a surviving spouse and you did not leave a will, your parents, for example, would not inherit, under many state intestacy laws. According to Sharī‘a, a will that leaves a bequest is either obligatory, recommended, disliked, or prohibited, depending on the circumstances. The obligatory bequest is one you must make. An example of this is when you owe someone a debt, but no one knows about this debt except you and the creditor. In this case, you must include the debt in your will. Another example is if you are wealthy and have poor relatives that are not eligible Sharī‘a heirs; you are obligated to leave them something. The recommended bequest is one you should strongly consider. For example, if your Islamic heirs and relatives are wealthy and not in need, leaving part of your estate for charity is recommended. The disliked bequest is not recommended. For example, if your estate is not large, your Islamic heirs and relatives are poor, and you leave part of your small estate to non-Islamic heirs, the scholars concluded such a bequest is disliked, because it will create hardship for your family. The prohibited bequest is not allowed under Sharī‘a. For example, it is prohibited to leave more than 1/3 of your estate to non-Islamic heirs or to give an Islamic heir more than his or her share as stated in the Qur’an. This is based on the famous Hadith of the Prophet that says “there shall be no bequest to an Islamic heir.” Unlike the Sunni opinion, the Ja‘fari (Shia) school permits a bequest to an Islamic heir as long as it does not exceed 1/3 of the estate. To summarize, if you want your estate to be distributed according to the Sharī‘a, you must have an Islamic will. Use our ISLAMIC WILL software to prepare your own customized Islamic estate plan that is legally valid for your state.Read More
What is an estate plan?
A standard estate plan includes a Will, a healthcare directive/living will, and a durable power of attorney. A will is not complicated or expensive. You do not need to be rich to have a will. Even if you have minimal assets, a will ensures your property is distributed according to your wishes, you select your burial wishes, appoint guardians for minor children, select the person you trust to manage your affairs after your death, and so much more. A will does not cover all your assets. Any asset that you own with a pre-selected beneficiary - like insurance policies naming your spouse or your children as beneficiaries, or a retirement account naming your spouse as a beneficiary, or a property you own with another person with the right of survivorship - passes directly to your selected beneficiary outside of the will. The will covers all other assets that form your estate. In your durable power of attorney (POA) you appoint an agent to act on your behalf when you are unable to do so yourself. The POA gives your agent the power to transact real estate, enter into financial transactions, and make other legal decisions as if he or she were you. This type of power of attorney terminates at your death and you are free to revoke this type of POA at any time prior to death. A health care directive/ living will designates another individual (typically a spouse or family member) to make important healthcare decisions on your behalf in the event of incapacity. Of course, you should select someone you trust, who shares your views, and who would likely recommend a course of action you would agree with to act as your power of attorney and health care agent. They do not have to be the same person. As with all appointments, a backup or alternate guardian, power of attorney and/or health care agent should be named as well. Absent these designations, a court will appoint a person to handle your affairs. With a standard estate plan (a Will, a healthcare directive/living will, and a durable power of attorney) your financial and non-financial end of life affairs will be in order and according to your wishes and you protect your family.Read More