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| Shariah-Compliant Wills: A Primer |
 Remembrance of death and the afterlife is a cornerstone of the Islamic ethos. Nevertheless, when it comes to inheritance many Muslims living in the United States fail to make the arrangements necessary to ensure their legacy will pass under the precepts of Islamic Shariah law, and as a result their possessions will be disposed of in a manner suitable to the State, but not Shariah law.
After one’s death, it is too late, in any American jurisdiction, for relatives to dictate to a court of law how the decedent would have wanted his or her possessions to be distributed. All jurisdictions, without exception, will ignore such pleas and apply their own laws of intestacy, laws that govern how an estate will be distributed upon death absent a will. Such laws will hardly conform to Shariah law.In order to best illustrate how the laws of intestacy function, it is best to use the example of Husband, H, the decedent, who has not drafted a will during his lifetime. H dies survived by his wife, W, one son, A, and one daughter, B. H had an estate of $240,000 with no outstanding debts. According to Shariah law, W is entitled to one-eighth, or $30,000, and A and B share the remaining $210,000. Since A is male, he receives a share twice that of B. So A is entitled to $140,000 and B is entitled to $70,000. If H died in New York, for example, the above distribution would be dramatically different under the intestacy laws of those states. W would be entitled to $50,000 plus one-half of the remainder, for a total of $145,000. A and B would share equally in the remainder, getting $47,500 each. In comparing Islamic intestacy laws with those of New York, it is clear that the distributions are vastly dissimilar, but all parties are still represented. However, if H was survived by a mother or father, then they would also be entitled to one-sixth under Shariah law. Under New York state law, the distributions would be the same as above, and the parents would get nothing. Essentially, U.S. state laws permits disowning a blood relative, which is forbidden under Shariah law. In order to prevent this, those wishing to comply with Shariah law should have a carefully drafted, enforceable will that upholds Shariah law under U.S. jurisdiction. Essentials of the Islamic Will A will is a legal document that gives the executor of that will direction on how the testator’s property should be distributed. In the Islamic context, however, the distributions are not at the discretion of the individual; rather, they are dictated in detail in the Qur’an and Hadith. Therefore, under Shariah law every individual’s estate would automatically be distributed in accordance with the rules outlined in the Qur’an and Hadith. While the laws of succession, whether intestate or not, are strictly structured by Shariah law, a dispensation does allow for the distribution of a portion of the estate as the decedent pleases by way of a will, as established by Hadith. According to this tradition, and several other similar narrations, the Prophet Muhammad (peace be upon him), permitted an individual to dispose of up to one-third of his or her property to anyone not defined as an heir under Shariah law. This distribution, known as the wasiyya, allows an individual to leave bequests for charitable organizations, non-relative friends, non-Muslim relatives, adopted children, or anyone not recognized as a legal heir under Shariah law. In the aforementioned example, under Shariah law H cannot leave an additional wasiyya bequest to W since she is already set to inherit a one-eighth share. However, if W was not a Muslim, then she would not be entitled to a one-eighth share under certain interpretations of Shariah law. Assuming in the present example that W could not inherit from H due to her difference in religion, H could make a wasiyya bequest to W for an amount up to one-third of his possessions. Thus, the Islamic will is essentially a three step process. First, before any distributions are made, Shariah law requires that all of the decedent’s debts and expenses be settled before any of the estate be distributed amongst his or her heirs. Once those debts are settled, an individual may bequeath an amount of up to one-third of his or her estate by way of the optional wasiyya to any person or institution who will not inherit under the normal Shariah intestacy laws. Finally, once debts and expenses are settled and the optional wasiyya has been subtracted, the remaining estate is distributed in accordance with the strict guidelines established in Shariah law. An Islamic Will in U.S. Jurisdiction It is absolutely clear that U.S. courts will not recognize a mere desire to have a relative’s estate distributed according to Shariah law principles—even if such desire is expressed through a signed or even notarized document. Quite practically, a U.S. judge cannot be expected to sit and interpret Islamic law. Moreover, a judge will not apply a document that is not legally binding upon the court. Thus, in order to have an Islamic will enforced in a U.S. court, one must make sure that the document is legally valid and that the instructions are clear and unambiguous. All American jurisdictions require certain formalities before a will is legally acceptable. For example, in New York, the formalities are as follows: (1) The testator must be over 18 years of age; (2) The testator must sign the will; (3) The signature must appear at the end of the document; (4) There must be at least two attesting witnesses; (5) The testator must declare to the witnesses that the document is his/her last will and testament; (6) The testator must sign or acknowledge is signature in the presence of each witness; (7) The Will must be executed within 30 days after the first witness signs. Requirements for other jurisdictions may vary slightly (e.g. some jurisdictions may allow more or less time to execute the will). In very few jurisdictions, such as New Jersey, a holographic will—an unwitnessed will in the testator’s handwriting—is still legally acceptable. Although legally acceptable, such wills are frequently subject to contests and challenges after the death of the testator, and it is therefore preferable that a will comply fully with the aforementioned formalities so as to avoid contestation. Consequently, an Islamic will must be drafted with these same formalities in order to have any force in a U.S. courtroom. In addition to these requirements, the bequests must be stated clearly, explicitly identifying individuals and the quantities they are to receive. It is not sufficient to state: “This estate shall be distributed according to Islamic Shariah law.” Instead, the will must state that it is an Islamic will and then it must recite all the beneficiaries and their respective shares. The wasiyya bequest and Islamic inheritance distributions must both be set out in this document as there is no distinction in U.S. courts between wasiyya and inheritance. Conflicts with U.S. Law Contrary to Islamic law, U.S. laws allow a testator to dispose of his property as he/she wishes. For example, it is perfectly acceptable for a wealthy widow with several needy children to disown all of them and leave her entire fortune to, say, a charitable organization or a friend. However, there is one exception to this rule. Most jurisdictions will not allow a testator to disown a spouse. In such an event, most jurisdictions have created a spousal right of election (or elective share), which is essentially a safety net to protect a spouse that has been cut out of a will. If a spouse exercises this right, in New York he or she will receive $50,000 or one-third of the decedent’s estate (whichever is greater). For example, H dies and is survived by his wife and two children. H has an estate of $80,000. In his will, he left his wife with $10,000 and each of his children with $35,000. In court, his wife may exercise her right of election and collect her elective share, which is one-third of the estate or $50,000, whichever is greater—in this case $50,000 is greater. Since she has already received $10,000, she is entitled to an additional $40,000. The court will reduce each child’s bequest by $20,000. In the end, the wife will receive $50,000 and each child, A and B, will be left with $15,000. The end result is drastically different from the testator’s intent and wishes. The right of election conflicts with Islamic distributions because the spousal shares are frequently less than one-third of the estate. A wife receives one-eighth share when there are children and a one-fourth share when there no children. A husband receives a one-fourth share when there are children. All of these distributions would be subject to the right of election under the state laws in the U.S. The elective share is a matter of public policy established to prevent one spouse from depriving the other spouse of property that the two acquired during the marriage. This falls generally within the American principle that marriage is an equal partnership. However, in the Islamic context, a wife’s property belongs to her alone, while the husband’s property is communal, to be used for the benefit of the family as a whole. In this spirit, Islamic law entitles women to a lesser share. If a couple wishes to comply with Shariah law with regard to inheritance, in most cases the surviving spouse will need to renounce his or her right of election in order to do so. However, in the event that a waiver cannot be obtained, the Islamic distributions may still be upheld in U.S. courts. Courts have previously upheld faith-based clauses even when they contradict public policy such as those of the Roman Catholic and Jewish Orthodox traditions. While such a holding is possible, it does,not create an unmitigated rationale that all religion-based clauses will be upheld. Therefore, it is best to prudently draft wills to ensure enforcement. Once the matter with spousal shares has been resolved, there are relatively few conflicts with Islamic inheritance law in U.S. jurisdictions. The courts will simply give effect to the will as it is written and according to the intent of the testator. If there are ambiguities, however, courts are restricted in what they may interpret. In order to resolve disputes over the interpretation of Shariah law, a testator can include an arbitration provision. Case law demonstrates that resolutions by religious tribunals have been given binding effect. Once the chosen Islamic tribunal reaches a resolution of the Shariah–related dispute, a U.S. court will be able to enforce the will without violating the First Amendment. There are a few local Islamic institutions in the United States that can provide arbitration services for this purpose. Conclusion In sum, a carefully drafted Islamic will is most likely to be given full force and effect in U.S. court of law so long as it complies with the various statutory requirements of a properly drafted will. Despite the large disparity between U.S. and Shariah inheritance laws, U.S. courts give an individual the freedom to carry out his or her intentions after death. As a result, Muslims in the U.S. have the freedom to fulfill their obligations under Shariah law in the distribution of their property after their death so long as they ensure they are in compliance with the laws of their jurisdiction, a step that is easily carried out with the assistance of a qualified attorney. © Omar T. Mohammedi, Esq., Law Firm of Omar T. Mohammedi, LLC, 233 Broadway, Suite 801, New York, New York 10279. All rights reserved.
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