Klenk Law

Drafting a Sharia-Compliant Islamic Will and Estate Plan in New York

Posted on Wed Nov 25, 2015, on Estate Planning

At Klenk Law, we are often asked to incorporate our clients’ religious principles into their estate plans. Recently, we have noticed a significant increase of inquiries regarding Sharia Compliant Wills, which is an excellent topic for discussion.

Source of Principles

The four sources for the principles that guide Sharia Compliant Wills are:

  • the Qur’an,
  • Sunnah,
  • Ijma, and
  • the Qiyas.

The rules laid out in these sources are complex and context specific. Difficulty in application of these rules is claimed to have spurred the invention of modern day algebra. Inheritance plays an important role in the Islamic tradition. The Prophet Muhammad said, “it is the duty of every Muslim who has something which is to be given as a bequestnot to have it for two nights without having his will written down regarding it.”

So, what are the basic rules, and how are they applied?

Basics of a Compliant Will

Sharia Compliant Wills follow a strict formula based on the number and gender of the relatives and descendants left behind. However, before property is to be left to heirs, certain other steps must be taken.

First, all debts and expenses of the estate must be settled before any distribution of estate assets happens. The first debt that must be paid is the cost of the funeral, followed by any debts to individuals and organizations. This includes any unpaid portion of a deceased male’s marriage gift to his wife, known as a mahr. Only after this has occurred can the estate be divided and distributed among heirs.

The Sharia Compliant estate division can be broken down into two components: the Wasiyya Bequest and Sharia Inheritance.

Wasiyya Bequest

The Wasiyya Bequest is an opportunity for every Muslim to bequeath assets to those who would not otherwise inherit under the Sharia Inheritance. This portion of the estate is limited to one-third of a person’s property and never any larger amount. This is frequently used to provide a gift to charity, to friends, or to other organizations close to the deceased. Also, this can be used to give money to adopted children who would not otherwise be qualified to inherit under Sharia law.

Sharia Inheritance

The final portion of the estate plan is the Sharia Inheritance. This is the context-specific, thorny issue that requires a full understanding of the deceased’s family tree at the time of death. The ultimate disposition is dependent on the deceased’s madhhab. The most typical situations include:

  • Wife Survives with Children: 1/8th to Wife; Remainder to Children, with sons receiving twice as much as daughters
  • Husband Survives with Children: 1/4 to Husband; Remainder to Children, with sons receiving twice as much as daughters
  • No Spouse Survives, Only Children: Remainder to Children, with sons receiving twice as much as daughters

As you can see, the amount of inheritance one receives depends both on the gender and the living members of the deceased’s family. As you can see above, if a man died with a spouse and son, the son receives substantially more. As a final note, non-Muslims are forbidden to inherit any portion of a Sharia Inheritance.

Conclusion

This is a brief primer on the fundamentals of Sharia Compliant Wills. It is meant to introduce the Wasiyya Bequest, Sharia Inheritance and auxiliary concerns. A full understanding takes dedicated learning and understanding of the theological background and practical issues.

If you need assistance with a Sharia Compliant Islamic Will in New York, please call one of our experienced Estate Planning Attorneys for a free consultation.

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