What assets does my Islamic will cover?

Your Islamic will, like a secular will, covers all the assets that make up your estate. When you die, the interests you have in all your property—real and movable—become part of your estate. According to American law, title to property—real or movable—transfers to another person at death either by will or by operation of law.

American law includes what is called a “right of survivorship.” For example, you and your spouse may own your home with a right of survivorship. If you die, your interest in the home will automatically transfer to your surviving spouse.

Bank accounts can also have a survivorship right. When you pass away, the bank account balance passes automatically to the joint owner of the bank account. This means that any property owned with a right of survivorship will not go to your estate. The property or its benefits will go directly to the selected survivor.

Similarly, with retirement accounts or life insurance, the person you selected for the survivor beneficiary for a retirement account or insurance policy will receive those benefits automatically upon your death. These proceeds also do not become part of your estate.

As a result, in the United States, an Islamic will, like a secular will, does not cover assets that are transferred to third parties by right of survivorship or because of pre-selected beneficiaries. If you want all of your assets to be included in your estate, you need to retain an attorney to advise you on changing title ownership of your assets owned with a survivorship right and/or change the beneficiary of your retirement or life insurance to your estate.

If you want your estate to be divided according to Sharī‘a inheritance rules, use our ISLAMIC WILL software to prepare your own customized Islamic estate plan that is legally valid for your state.

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.

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