COMMON PITFALLS OF SHARIA-COMPLIANT WILLS AND HOW TO OVERCOME THEM, PART 1: THE ELECTIVE SHARE

When it comes to estate planning, Sharia law makes it a duty of every practicing Muslim to prepare for their passing by making the necessary arrangements to ensure that their estate will pass according to their religious obligations. The duty of having a will is a significant matter within Sharia law. In the Hadith, the Prophet Muhammad states, “[i]t is the duty of every Muslim who has something which is to be given as a bequest not to have it for two nights without having his will written down regarding it.” Sharia law is very clear on the importance of inheritance law. The Maliki school of jurisprudence likens the knowledge of inheritance law as half the knowledge of religion itself. Therefore, every practicing Muslim who wishes to follow Sharia law must ensure that his or her estate passes in accordance with the Sharia laws governing inheritance.

The fourth chapter of the Qu’ran, Surat An-Nisaa, provides the foundation for how a practicing Muslim’s estate should be distributed. These rules are further expanded upon in the Hadith, sayings and practices of the Prophet Muhammad, ijma, and qiyas, tools of interpretation as applied to the Qur’an and Hadith. Together these mandates governing inheritance are known as ilm al-fara’id or “the science of shares” and provide a stringent formula which specifically dictates how the estate is to be distributed. Muslims living in the United States however face certain challenges reconciling conflicts between Sharia inheritance laws and state intestacy laws. Navigating these issues and avoiding what could potentially be a messy probate situation can be very difficult, given the complexities in and the differences between the two bodies of law. In this post, I will discuss some of the common pitfalls in ensuring that Sharia-compliant wills are in line with New York State law.

Sharia Law Vs. Public Policy And the Elective Share


New York allows testators near-unlimited flexibility in how one chooses to distribute one’s property. Therefore Muslims living in the United States are generally free to create a will in New York State that meets the rules of Sharia inheritance law. However, certain aspects of public policy present conflicts to drafting a Sharia-compliant will. For example, Sharia-compliant wills may conflict with public policy matters pursuant to state intestacy laws, such as spousal right of election.

From a public policy standpoint, the elective share prevents the deceased spouse from depriving the surviving spouse of assets that the two acquired over the course of their marriage. Further, the elective share serves as a statutory mechanism to ensure the surviving spouse from potentially becoming a public charge. Generally, according to New York law, if someone dies without a will or chooses to effectively disinherit a spouse, the spouse can elect to receive $50,000 or one-third of the decedent’s estate (whichever is greater). Sharia inheritance laws however directly conflict with the elective share because the spousal shares are generally less than one-third of the estate.

According to Sharia law, a wife receives one-eighth of the residual estate when there are children and one-fourth of the residual estate when there are no children. A husband on the other hand will take one-fourth of the residual estate when there are children. Take the following hypothetical:

A, a resident of New York, dies, survived by his wife, his son, and his daughter. A has an estate of $210,000. In A’s will, he left his wife, B with $10,000 and each of his children with $100,000. During probate, A’s wife has the option to exercise her right to her elective share, which is one-third of the estate or $50,000, whichever is greater (in this case, $70,000). The court will reduce each child’s inheritance by $30,000. Ultimately the wife will take $70,000 and each child will take $70,000.

Using the same example above, under Sharia law, A’s wife would receive one-eighth of the estate, or $26,250. Therefore how does one reconcile the two?

Islamic traditions dictate that the wife’s property belongs to her alone, while the husband’s property is communal and to be shared and used for the whole family. Sharia law factors this into the distribution since no financial burden is expected to be placed on the wife.  Therefore, under Sharia law, the amount each spouse is set to inherit is not by gender, but rather due to their financial obligations.

To point, under Sharia law, any assets that the wife gains on her own, either through employment or gifts belong to her and her alone, not to her husband or the household. All property that the husband owns is communal and is co-owned by the husband and wife during the husband’s lifetime. In the above example, the wife would keep all assets owned herself and a one-eighth share from the communal share.

Further, the wife also receives an additional marriage gift known as the mahr. The mahr is made up of two parts, the muqaddam and the muakhkar – independently owned by the wife with the muakhkar being a debt against the estate of the husband which must be paid before any other estate distribution takes place. Additionally, should the husband be concerned about the assets his wife will receive upon his death, there is no restriction of an inter vivos transfer of additional property which would be in line with Sharia law. Therefore, an argument can be made that under Sharia law, the surviving spouse is unlikely to become a public charge absent a right of election and the state then may not have a compelling interest to interfere with the deceased testator’s final religious duty.

In the next installment, I’ll discuss the rule of exclusion prohibiting non-Muslims from inheriting assets from Muslims. For updates on this topic, please subscribe to our blog. Further, if you have any questions about Sharia-compliant wills or estate planning in general, please feel free to contact Allen Shiu, Esq. for a consultation.

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