Of interest for many who do religious based inheritance planning was the Illinois case of In re ESTATE OF MAX FEINBERG. While the case has been decided by the Illinois Supreme Court, a petition for certiorari has been filed with the United States Supreme Court. No action has been taken on this petition as of yet.
In this case, the testamentary documents included a “Jewish clause.” As it was described by the Supreme Court of Illinois:
This clause directed that 50% of the assets be held in trust for the benefit of the then-living descendants of Michael and Leila during their lifetimes. The division was to be on a per stirpes basis, with Michael's two children as lifetime beneficiaries of one quarter of the trust and Leila's three children as lifetime beneficiaries of the other one quarter of the trust. However, any such descendant who married outside the Jewish faith or whose non-Jewish spouse did not convert to Judaism within one year of marriage would be "deemed deceased for all purposes of this instrument as of the date of such marriage" and that descendant's share of the trust would revert to Michael or Leila.
The court felt it cannot enforce such a clause since it would cause them to enforce either the breakup of a family or restrict an individual’s freedom of religion.
There is a strong tradition of testamentary freedom in the United States.
This means that if an individual wanted to give all of his money to one person, given all the charity or give it to a pets, courts will often not stand in the way. If Mr. Feinberg simply didn’t want one of his sons to have any inheritance, and this could be because he married somebody Mr. Feinberg did not like, courts would frequently be fine with that.
The problem here is that in Feinberg, there was an extensive efforts to control things such as marriage from the grave that governed future conduct. While courts are free to respect the testamentary decisions of individuals in a wide range of contexts, it would rightly feel that this is going too far.
Among the lessons that Muslims should really take from the cases such as this:
Avoid the urge to control from the grave
In Islam, there are some significant concerns, not insurmountable, when it comes to “Dynasty trusts” that may last hundreds or even thousands of years. These trusts are usually “discretionary” on the part of a trustee for they may be settled with “rules” that may or may not be reasonable. A frequent motivation in building such trust is for continuing on a legacy or, as would be appropriate in the case of Mr. Feinberg, maintaining a 4000 year tradition within his family.
To the extent estate planning is done to restrict a prospective behavior of people after the individual doing the planning dies, we are talking about control from the grave. Tradition should be kept alive by the living or not at all.
No compulsion
For Muslims in general, a case such as Feinberg does not pose a significant problem. This is because nobody in the Muslim community restricts marriage within the religion in the inheritance realm. This includes marriages that are arguably or not, prohibited in the Sharia’h. For example men who marry non-Muslims who are not “people of the book” (Christians and Jews).
While persons who have specifically left the religion of Islam and to say so, must be disinherited and cannot even benefit from a wassiyyah, (this brings about its own complications that go beyond the scope of this post) it is not necessary or even desirable for parents to require that their children be especially “good Muslims.”
Inheritance goes to heirs in Islam because it is ordained as such by the Quran. As restrictions on religious practice or marriage not exist in the Quran (at least in this context), it is inappropriate for Muslims to simply add those on. To add such things is to allow people to indulge in their own personal vanity and has little to do with justice.
