Shariah and Estate Planning
In the post-September 11 world, the term shariah has been rampantly used throughout the media. While shariah has been widely discussed, little focus has been put on explaining the significance and relevance of this body of law. In a nutshell, shariah is an all-encompassing area of the law that deals with many aspects of day-to-day life, including politics, economics, inheritance, banking, business law, contract law, sexuality, and social issues.
Given that Islam is one of the fastest growing religions in the United States, with an approximate population of five to eight million Muslim Americans, 1 legal practitioners throughout the country are scrambling to understand the basic principles of shariah.
Muslims in the United States are generally made up of a fairly affluent and educated group of people. It is estimated that the Muslim American community retains the purchasing power of approximately $170 billion dollars. As the first generation of American Muslim immigrants reach retirement, one of their primary concerns is estate planning.
Islamic societies are generally what we may call willless societies. Traditionally, Islamic nations do not require a will for the disposition of property upon one’s death. Shariah mandates the shares of each heir, payment of debts, and obligations and the general distribution of the estate. In the event an individual has left behind a will, he or she is only entitled to devise one-third of his or her estate after the payment of the debts and obligations, as he or she wishes. 2 The remaining two-thirds shall be distributed according to the mandates of shariah. However, should the heirs choose to comply with the terms of the will, they are certainly free to do so.
However, more and more Muslims in the United States are realizing the importance and necessity of having a will in place. As such, the concept of documenting the disposition of one’s assets is a fairly new concept for Muslims at large. While one may argue that the laws of intestacy in most, if not all, States allow for the disposition of property without the necessity of a will; unfortunately, these laws of intestacy do not take into consideration the principles of the Islamic faith. This issue exists across the board, whether we are dealing with states such as Washington, which adheres to the principles of community property, or separate property states such as Massachusetts.
For example, in a state adhering to the principles of community property, generally the share of the surviving spouse includes all of the decedent’s community property and, at a minimum, one-half of the net separate estate if the intestate is survived by issue. However, under the principles of Islamic law or shariah, the proportionate share that a surviving spouse is entitled to inherit is contingent on several factors including but not limited to (1) is it the husband or wife that is inheriting? (2) how many children is the decedent survived by? (3) what is the characteristic of the property (i.e., did the wife receive it as inheritance, or was it gifted to her by her spouse during the marriage)? Further, the concept of community property is nonexistent in the principles of shariah. Despite this, financial security is assured for women under shariah. A woman is entitled to receive unlimited marital gifts, which can include properties. Additionally, any properties and income derived from those properties are the exclusive and separate property of the woman, even after marriage. No woman is required to spend any portion of her property or income on her household. Upon the death of her spouse or in event of a divorce, such acquired property remains as the exclusive property of the woman.
Another example is that under the laws of intestacy in most states, surviving children all receive an equal share. Under shariah, sons receive twice as much as the daughters. However, other elements of shariah are in sync with the Washington State laws of inheritance. Take, for example, the slayer statutes. The slayer statue in Washington states in pertinent part “No slayer shall in any way acquire any property or receive any benefit as the result of the death of the decedent.” Similarly, the shariah provides that “One who kills a man cannot inherit from him.” All Islamic jurists agree that intentional or unjustifiable killing according to shariah is a bar to inheritance.
Solutions to Shariah
This article is neither aimed at addressing the fairness of such distributions nor the reasons behind such provisions, but rather to examine the issues that the Muslim communities in the United States face today when dealing with issues pertaining to inheritances. The Muslim community is having to find ways to reconcile the laws of their respective states with the shariah. For practicing Muslims, their faith is interwoven with their daily lives. It is essential for them to find harmony between shariah and laws of the United States. In an effort to do this, they are turning to estate planning practitioners to find a solution. One of the key fears among Muslims is the fear that their will may be deemed null and void upon their death as being in violation of local statutes. As such, it is becoming increasingly important for practitioners not to only understand the Islamic laws of inheritance but also the Islamic culture. In order for an attorney to be able to competently advise a Muslim client on the ramifications, consequences and solutions to shariah-created issues, it is essential that the practitioner have some understanding of the principles of shariah.
Understanding Islamic wills (or rather, shariah-compliant wills) and Islamic estate planning is a very complex area of law that will require practitioners to utilize creative ways to sync shariah with local laws. Creativity will not only require drafting immensely detailed wills but also the use of other tools such as property agreements, trusts, prenuptials, postnuptials, and gifts.
There are estimated to be nine to 12 million Muslims living in the United States. A growing Muslim community will require lawyers to have at the very least the basic understanding of Islamic estate planning and will undoubtedly require lawyers to look beyond the legal culture and step into foreign territory to ensure that they are able to serve this particular community, effectively keeping in mind the specific religious needs.
Shahzad Qadri is a partner specializing in business law, international business law, estate planning, and Islamic law at Adorno Yoss Caley Dehkhoda & Qadri in Bellevue, Washington.
"Shariah and Estate Planning" by Shahzad Q. Qadri, published in Washington State Bar Association Bar News, November 2007. Reprinted with permission.