I am an American Muslim. Does the Sharī‘a require me to have a will?

 

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.

I own a home with my wife. If I die, my interest in the house goes to my wife. My other Islamic heirs will not share in the home. Does that violate Sharī‘a?

Strictly speaking, yes.

Some would consider this a transfer during lifetime, so it would not violate Sharī‘a. Others would argue that because the transfer is effective upon death, it would be an invalid lifetime transfer according to the Sharī‘a. However, if the Islamic heirs consent to this transfer at the time of the testator’s death, the transfer would not violate the Sharī‘a.

Depending on the circumstances of the family it may be reasonable to consider the house the wife’s house because she had invested efforts, money, and/or time in maintaining it. It is only fair that she receive the house. The same is true if the husband’s wife passes away and he receives the marital residence.

Finally, strong Islamic authority indicates that a wife is not responsible for the domestic chores for the family and her husband. Some scholars agree but only for a wife who was accustomed to such lifestyle prior to marriage. Based on this Islamic law authority, a husband may be required to hire domestic help to provide these services. If his wife provided those domestic chores, such as preparing food, caring for the children, and taking care of clothing, the husband may be required to financially compensate his wife for all the domestic services she provided him and the family. If your wife provided these domestic services, you may wish to pay off the moral debt/obligation you owe her for these services by giving her the marital residence.

To better protect the financial security of your wife should you predecease her, use our ISLAMIC WILL software to prepare your own customized Islamic 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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