Islamic Inheritance Step 3: The Islamic Heirs

This is not meant to be a comprehensive treatment of the Islamic Rules of Inheritance. The information provided represents a practitioner’s perspective on the matter and many of the common issues that come up. This is not intended to cover all of the issues of the topic.

The Default System

Before we discuss calculation of the Islamic rules of inheritance, it is useful to address what it is that we have without any planning. The inheritance system is based on a hodgepodge of the Honda rules, some of them are contractual, some based in part on Federal law and much of it based on statutory law, particularly the probate code.

Joint Ownership

Frequently, couples own their property through “joint ownership with right of survivorship.” This ends up resulting in 100% of the property going to the surviving spouse after the first spouse dies. Given that this does not correspond with the Islamic rules of inheritance, where the surviving spouse is to never receive more than ½ of the property, this creates an environment where the rights of individuals are being violated.

Beneficiary designations for the surviving spouse

A favored beneficiary is the surviving spouse. The tax code in general favors giving a surviving spouse retirement assets because of the availability of a “spousal rollover.” Often, the surviving spouse is listed as the as sole beneficiary for purposes of convenience. Once again, this would violate the Islamic rules of inheritance because people other than the surviving spouse will be denied their rights based on the Islamic rules of inheritance.

Spousal property petitions

Even in the absence of joint ownership, state law may allow the surviving spouse to obtain all property by going through a fairly minimal court process. What should be abundantly clear through this discussion is that the system tends to favor the surviving spouse.

Intestacy Statutes

If you have what is referred to as “probate property” and you do not have a “last will and testament” the government will simply give you a last will and testament. This is known as the intestacy statute.

For a Muslim, the “intestacy statutes” must be avoided at all costs.

Before Inheritance

After a death of an individual the following needs to be done:

Take care of burial expenses.
Pay all debts
Pay the wassiyya of up to 1/3
Distribute the remaining shares to those who are entitled to inheritance under the Islamic Rules of Inheritance.

The process of calculation

In the vast majority of families, the process of calculation of Islamic inheritance is a relatively simple one. The universe of persons who are entitled to inheritance under the Islamic rules of inheritance frequently reside in the immediate family. However, in many cases, siblings will inherit as well.

Books on the Islamic rules of inheritance typically delve into issues of calculation, particularly concerning the remote relationships. Many of these are illustrated through the use of charts.

Software developers have for years adopted the calculation methodology into calculation software programs. One free software program is available at the following address:

www.islamicsoftware.org/irth

Fixed Shares

The Quran specifies shares that are fixed for the husband, the wife, the mother and the father. Both the mother and the father are entitled to 1/6 by the husband who is then entitled to either 1/2 or 1/4 depending on whether there are children and the wife is entitled to either 1/4 or 1/8.

Variable Shares for children

Children receive the balance of the inheritance, with the son getting two shares for every one share that the daughter receives. This has to do with the relative support obligation that husbands and fathers have with their inheritance. The female who receives inheritance has no obligation to utilize it for support, while the male does.

Other Possible Heirs

The most common individuals who would inherit would be brothers and sisters. Their ability to inherit depends in part on the existence or nonexistence of other heirs. For example, if there is no father, no son or grandson (or possibly grandfather).

Adopted Children

The practice of adopting children so they enjoy the same rights as natural born children does not exist in Islam (Quran 33:4-5). Adopted children however may receive a distribution through the wassiyyah process.

Disinheritance

In Islam, it is simply not permissible to disinherit an individual. Inheritance is ordained in Islam. If you follow Islam, then it is not your decision to reward or punish using inheritance, a common practice in American culture. Inheritance is fundamental to Islamic society and it is the responsibility of Muslims to make sure their heirs get inheritance, even if they don’t get along with their heirs.

More Remote Relatives

In general, this only applies in cases where close relatives are not available. Who inherits under the circumstances when there are no “primary” or “secondary” beneficiaries Can be calculated utilizing an Islamic Inheritance calculator that also takes into account schools of thought.

Because the people who actually plan based on the Islamic rules of inheritance in the United States tend to have their own nuclear families and frequently parents and siblings, this discussion is outside the scope of this series. However, it is now possible the calculate inheritance based on the various schools of thought through software.

Mixed families (Muslims with non-Muslims)

Non-Muslims as a general rule, are not allowed to inherit from Muslims, or vice versa. The evidence for this comes from a hadith reported by Usama bin Ziad:

“A Muslim cannot be the heir of a non-Muslim, nor can a non-Muslim be the heir of a Muslim.”

In this instance, the term “heir” should mean “inheritance-by-right” and not the wassiyyah. Therefore, an individual can distribute to non-Muslim relatives no more then 1/3 of the total assets they possess.

As a general rule, Muslims need not be “practicing” Muslims in order for them to inherit.

Those who have no close relatives

There are multiple categories of “heirs” that may benefit from an individual’s wealth; many of them are not close relatives. Occasionally, particularly in the United States, it may be necessary to name a charity or other beneficiary who is to receive all inheritance in the event that there is nobody available to receive it.

Simultaneous death

Frequently, people wonder what happens in the event both spouses die at the same time. Under such circumstances, if it will be presumed each predeceased the other. If it is known who died first then that fact will control inheritance.

Survivorship presumption

By statute, for the purpose of ease of administration, it’s possible for children to be “disinherited” if they die a short time after their parents. In Islam, you are not allowed to presume a person is dead when they are actually alive.

Writing It down

It is vital that the specific shares of inheritance that are supposed to go to the specific people be calculated and written down in the trust document. This is simply too important to leave to ambiguity.

However, it is necessary to allow for some flexibility given that between the drafting of a plan and the death of the individual doing the planning, heirs may have since been born and others may have died or had a change of circumstances.

Upcoming Nuptials and other pitfalls

An inheritance can be designed so that the individual never actually receives a check directly, however does receive a beneficial interest in property. For practical purposes, this could amount to the same thing, at least so far as the beneficiary is concerned. However, it will be a different story if children get married and then divorced, lose a lawsuit or go through bankruptcy.

If given that we are dealing with the Islamic rules of inheritance, many solutions that exist for Non-Muslims are simply not available for Muslims. This is because inheritance is a right in Islam that belongs to the person who is going to receive the inheritance. Restrictions that would make it difficult for the heir to receive inheritance would not be appropriate. However, restrictions that do provide for asset protection for the children without imposing undue burdens on them should be explored given that this will protect children from possible future pitfalls.

Next, Go to Step 4: Division Issues