November 2007

Shariah and Estate Planning

Examining the issues that Muslim communities in the United States face today when dealing with issues pertaining to inheritances

by Shahzad Q. Qadri

In the post 9/11 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 the Islamic laws that are all-encompassing and deal 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 made up of a fairly affluent and educated group of people. As the first generation of Muslim immigrants reach retirement, one of their primary concerns is estate planning.

Islamic societies are generally what we may call societies without wills. 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/she is entitled to devise only one-third of his/her estate after the payment of the debts and obligations, as he/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.

The laws of inheritance have been addressed in the Qur’an in Surah Al-Nisaa (the fourth chapter), verses 11 and 12, and then in verse 176. Although a virtual translation of these verses is something to be desired, the complexity of the Arabic language forces us to rely on interpretations of the Qur’an. The following is an attempt to interpret verses 11 and 12 of Surah Al-Nissa:

Verse 11:
Allah enjoins you about [the share of inheritance of] your children: A male’s share shall equal that of two females — in case there are only daughters, more than two shall have two-thirds of what has been left behind. And if there be only one daughter, her share shall be half — and if the deceased has children, the parents shall inherit a sixth each, and if he has no children and the parents are his heirs then his mother shall receive a third, and if he has brothers and sisters then the mother’s share is the same one-sixth. [These shares shall be distributed] after carrying out any will made by the deceased or payment of any debt owed by him (the deceased). You know not who among your children and your parents are nearest to you in benefit. This is the law of Allah. Indeed Allah is wise, all-knowing.”

Verse 12:
You shall get half of what your wives leave, if they die childless. But if they do have children, your share shall then be a quarter of what they leave after carrying out any will made by the deceased or payment of any debt owed by her. And they (your wives) shall have a quarter of what you leave, if you die childless. But in case you have children, they shall then get one-eighth of what you leave, after carrying out any will made by you or payment of any debt owed by you (the deceased). And if a man or a woman is made an heir on account of his [or her] kalalah relationship [with the deceased] and he [or she] has one brother or sister, the brother and sister shall each receive a sixth and if they be more than two, they shall then share in one-third, after carrying out any will that had been made by the deceased or payment of any debt owed by him — without harming anyone. This is a command from Allah and Allah is all-knowing, most forbearing.

While verses 11 and 12 of Surah Al-Nissa focuses on providing guidance as to distribution of property to spouses, children, and parents, verse 176 delves into the rights of heirs who have what is known as a kalalah relationship.  Kalalah relation is an adjective used for a person who leaves behind neither parents nor children; it also means all the relatives of a deceased except his parents and children, and it also denotes the relationships which are not through [the deceased’s] parents or children.3 Verse 176 states, in pertinent part:

Verse 176:
They ask you. Say: Allah enjoins you about your kalalah heirs that if a man dies childless and he has only a sister, she shall inherit half of what he leaves; and if she dies childless, then her brother shall be her heir; and if there are two sisters, they shall inherit two-thirds of what he [or she] leaves. If there are many brothers and sisters, the share of each male should be that of two females. Allah makes [His commands] clear to you, so that you do not err. Allah has knowledge of all things.

While these verses from the Qu’ranic scriptures map out the distribution amongst heirs, the Qu’ranic laws are very clear in affording creditors preferential treatment. The first right on the property of the deceased is that of the creditors. After the payment to the creditors, any will made by the deceased shall be executed. The remainder of the property and assets of the deceased, if any, shall be distributed among the heirs in accordance to with the distribution schemes set forth in the verses referenced above.

Notwithstanding that shariah provides rules for distribution of property upon death, more and more Muslims in the United States are realizing the importance and necessity of having a will in place. While one may argue that the laws of intestacy allow for the disposition of property without the necessity of a will, unfortunately, the state laws of intestacy do not take into consideration the principles of the Islamic faith. For example, under Washington state laws of intestacy, the share of a 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.4 However, under the principles of shariah, the proportionate share that a surviving spouse is entitled to inherit is contingent on several factors, as stated in the verses from the Qu’ran referenced above, including but not limited to: (1) whether it is the husband or wife who is inheriting; (2) the number of children they are survived by; (3) 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. Furthermore, 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 the event of a divorce, such acquired property remains to be the exclusive property of the woman. Another example of the differences between state law and shariah is that under Washington state laws of intestacy, surviving children all receive an equal share.5 Under shariah, sons receive twice as much as daughters.

However, other elements of shariah are in sync with the Washington laws of inheritance. Take, for example, the slayer statute. The slayer statute states in pertinent part that “[n]o 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 “[o]ne who kills a man cannot inherit from him.”6 All Islamic jurists agree that intentional or unjustifiable killing according to shariah is a bar to inheritance.

This article is not aimed at addressing the fairness of such distributions nor the reasons behind such provisions, but rather to examine issues that 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 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 amongst Muslims is the fear that their will may be null and void upon their death as being in violation of local statutes. As such, it is becoming increasingly important for estate-planning practitioners to not 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.

Islamic wills, or rather, shariah-compliant wills, and Islamic estate planning is a very complex area of law that requires practitioners to utilize creative ways to integrate shariah with local laws. Creativity not only requires drafting immensely detailed wills, but also the use of other tools such as property agreements, trusts, prenuptials, postnuptials, and gifts. Approximately 50,000-90,000 Muslims are estimated to be living in Washington state. A growing Muslim community requires lawyers to have, at the very least, a 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 community effectively, keeping in mind the specific religious needs. 

Shahzad Q. Qadri is a senior shareholder at Caley Dehkhoda & Qadri, Inc. in Bellevue. In the past, Mr. Qadri has served on WSBA’s Committee for Diversity and has served as trustee for the King County Bar Association’s Young Lawyers Division. He is currently on the board and serving as chair for the World Education Foundation, a nonprofit promoting education in third-world countries. He can be reached at 425-869-4040 or shahzad@cdqlaw.com.

NOTES
 1.  As the U.S. census does not collect data on religious affiliations, the number of Muslims is an estimate.
 2.  Dr. Abdul Hai A’Rfi (First Ed. 1994) Islamic Law of Inheritance.
 3.  Javed Ahmed Ghamidi, Mizan, The Islamic Law of Economics, Al-Mawrid.
 4.  RCW 11.04.015.
 5.  RCW 11.04.015.
 6.  Dr. Abid Hussain, The Islamic Laws of Inheritance.