As parents, we decided that we needed to write a will to decide who we wanted to be guardians for our child and how we wanted our estate distributed. The Islamic laws were not what we wanted.
As parents, we decided that we needed a will. Therefore, some net surfing and searching was warranted in the name of research.
Looking at Georgia law spouse and children share equally if there is no will. In case of no spouse or children, parents are considered 2nd degree relatives, siblings 3rd degree and grandparents 4th degree.
Upon the death of an individual who is survived by a spouse but not by any child or other descendant, the spouse is the sole heir. If the decedent is also survived by any child or other descendant, the spouse shall share equally with the children, with the descendants of any deceased child taking that child’s share, per stirpes; provided, however, that the spouse’s portion shall not be less than a one-third share;
The problem for us here was that with a minor child, too much of the estate might be tied up until she’s older.
Of course, I had to search for what Islamic wills were out there and I found one from a major Atlanta mosque. When I first looked at the document, it just said that the distribution of the estate should be according to Shariah, which didn’t make any sense since who was supposed to figure that out. Now the document goes in some detail. However, I was surprised by this section:
I direct and ordain that any heir, declared as non-Muslim at the time of my death, be disregarded and disqualified in the application of Section B of Article V.
So anyone “declared as non-Muslim” can’t inherit from a Muslim. I decided to check some online Islamic sites. According to Sunnipath, a Muslim can’t inherit from a non-Muslim and a non-Muslim can’t inherit from a Muslim. However, a bequest can be made either way. The Salafi site Islam Q&A also has some information where they restrict even the bequest somewhat.
According to the Twelver Shia website, a Muslim can inherit from a non-Muslim but a non-Muslim cannot inherit from a Muslim.
This whole approach to inheritance is communitarian instead of individualistic. It looks like the community has major rights on the estate since these rulings make it difficult for the estate to leave a particular religious community regardless of how closely related some members of different communities might be.
There is another problem with this approach. Who decides who’s a Muslim or not? Islam Q&A provides a hint:
If you believe that the person who does not pray is a kaafir and apostate – which is the correct view, and Allaah knows best – it is not permissible for a kaafir to inherit anything from a Muslim’s wealth, or for a Muslim to inherit anything from a kaafir’s wealth.
This same principle might be applied by the same group to any sects/groups they consider heretic or non-Muslim. In that direction lies madness in my view.
SunniPath has guidelines on preparing one’s will according to Islamic principles, which contains this odd tidbit:
It is worth remembering here that along with one’s written Will, one should have a separate document stipulating the number of unperformed prayers, missed fasts, unpaid Zakat, unperformed Hajj, any other religious obligations and debts payable to the servants of Allah.
One must strive in accomplishing these obligations in one’s life, and make the necessary amendments to the document whenever an obligation is fulfilled. For example: One had 500 unperformed prayers. In such a case one should stipulate this in the document. Thereafter, whenever, a prayer is made up, it should be deducted from the total of 500. This “important” document should be attached with the Will in order to let the relatives know of one’s obligations and liabilities after one’s death.
While searching on inheritance information, I found this software that can calculate inheritance shares according to Islamic laws. That’s cool.
I would recommend that you read Quran’s verses about inheritance law too.
From what is left by parents and those nearest related there is a share for men and a share for women, whether the property be small or large,-a determinate share. But if at the time of division other relatives, or orphans or poor, are present, feed them out of the (property), and speak to them words of kindness and justice. Let those (disposing of an estate) have the same fear in their minds as they would have for their own if they had left a helpless family behind: Let them fear Allah, and speak words of appropriate (comfort). Those who unjustly eat up the property of orphans, eat up a Fire into their own bodies: They will soon be enduring a Blazing Fire! Allah (thus) directs you as regards your Children’s (Inheritance): to the male, a portion equal to that of two females: if only daughters, two or more, their share is two-thirds of the inheritance; if only one, her share is a half. For parents, a sixth share of the inheritance to each, if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased Left brothers (or sisters) the mother has a sixth. (The distribution in all cases (’s) after the payment of legacies and debts. Ye know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah; and Allah is All-knowing, Al-wise. In what your wives leave, your share is a half, if they leave no child; but if they leave a child, ye get a fourth; after payment of legacies and debts. In what ye leave, their share is a fourth, if ye leave no child; but if ye leave a child, they get an eighth; after payment of legacies and debts. If the man or woman whose inheritance is in question, has left neither ascendants nor descendants, but has left a brother or a sister, each one of the two gets a sixth; but if more than two, they share in a third; after payment of legacies and debts; so that no loss is caused (to any one). Thus is it ordained by Allah; and Allah is All-knowing, Most Forbearing.
My thoughts about this system of dividing up the estate is that it requires very specific social conditions, with a communitarian ethos where women are generally taken care of by men they are related to. In an individualistic society, this distribution leaves women in a bad situation. As parents of a girl, we are particularly sensitive to these issues.
Finally, the most important thing in our will (and the real reason we wrote one) is the issue of guardianship of our daughter in case both of us die. As immigrants living far away from parents and siblings, this was a difficult problem. We won’t want to remove her from familiar surroundings of the US but at the same time we couldn’t leave her with someone who’s not closely related. In the end, we decided that only her grandparents, uncles and aunts could be trusted.