It Starts with a Post by an Academic Islamic Law Expert
When someone sent me a screenshot of a Facebook post by a noted Muslim academic and expert in Islamic Law. I was perplexed by what the author was trying to do, and felt compelled to address it. I left out his name since it is not necessary.
According to a hadith, Islamic Inheritance is half of all useful knowledge. My goal is that Islamic Inheritance (known as the “fara’id”) and the wasiyyah should be essential information for Muslim adults.
This noted Muslim academic highlighted an unnamed “feature” of Islamic law. Where “revealed law both created default entitlements AND endowed individuals with powers to alienate those entitlements in a way that could undermine social expectations created by the default rule.” The academic then says the “testator is using his will-making powers with this twist; equal division between grandsons and grandchildren.” This scholar marveled that “there was no concern that this would somehow challenge the authority of the Quranic law of inheritance specifying that a son receives twice the share of a daughter.”
It is hard to tell if this academic was blowing smoke or if it demonstrated confusion about what the wasiyyah was. At the very least, readers could be forgiven for reading his prose and becoming more ignorant of Islamic Inheritance and the wasiyyah. So, let’s break this down.
If another person can alienate (sell, give away, destroy) something you think is an entitlement, it is not an entitlement.
Say Abdullah says to his only son and heir Bilal, “son, I have a million dollars. According to the Quran, you get all of it when I die: “A year later, Abdullah spends a million dollars on a mahar and the gift of a new home for his lovely young bride Bilquis, who ends up divorcing him six months later, but keeps the gifts. When a distraught Abdullah dies soon after, Bilal gets nothing from his now ex-millionaire father.
Was Bilal ever entitled to a million dollars?
Of course not. A lovestruck Abdullah had the right to give it all away during his lifetime, never mind if doing so was a good idea. Abdullah alienated his property by gifting it to Bilquis; he did not alienate Bilal’s entitlement. Bilal’s only entitlement is an inheritance from Abdullah if he survives his father. Inheritance means the wealth Abdullah cannot take with him, less his debts and the wasiyyah.
Debt and Wasiyyah
So, say, Abdullah never got to meet Bilquis and kept his million dollars until he died. He decides to do an Islamic Estate Plan to follow the mandatory Islamic Rules of Inheritance. Abdullah includes a wasiyyah, giving 20% of his wealth to orphan programs in his native Bangladesh. As I discussed elsewhere, his wasiyyah, should he wish to do one, is limited to ⅓ of his estate.
Some of Abdullah’s wealth is structured, so the government taxes it after his death. Those taxes are $20,000 (a debt). Abdullah’s burial costs are $10,000.
When Abdullah dies with $1,000,000, his son and only heir, Bilal, receives $770,000.00. Bilal was never entitled to more than that. If Abdullah had a larger wasiyyah, more debt, or spent the money during his lifetime marrying women, Bilal may be entitled to less or nothing.
Why is there no concern about challenging the Quran?
The academic here goes on to say there was a “twist”- in that the testator gave a wasiyyah to his grandchildren equally among boys and girls. This “twist” goes to “alienate those entitlements” (which, again, is not an actual thing) “in a way that could undermine social expectations created by the default rule.”
The academic explains, “there was no concern this somehow challenged the Quranic law of inheritance specifying that a son receives twice the share of the daughter.”
Why would a wasiyyah to grandchildren “challenge” the Quran on inheritance to sons and daughters? This proclamation seems incoherent but has confused some. Children have a right to inheritance in Islam. Grandchildren generally do not (obviously, there are situations where they might). Children and grandchildren are different family relationships. Muslims who want to give part of their estate to their grandchildren do it through the wasiyyah or lifetime gifts.
In our example, Abdullah can give up to ⅓ of his estate as a wasiyyah. So long as he is not violating any rules of the wasiyyah, it is his to bequest as he likes. Say, Abdullah had another son, Hashim, who died five years ago. Six children survived Hashim. Abdullah decided that instead of leaving his wasiyyah to orphan programs in Bangladesh, he would leave 20% of his estate equally to his male and female grandchildren from Hashim, but not his six grandchildren from Bilal, who still have both parents.
Of course, Abdullah can do this.
Social Expectations. Where?
Wasiyyah does not come with “social expectations” created by unrelated commands in the Quran. This claim seems to have no function other than to confuse people.
The wasiyyah is a simple concept. Muslims have broad but not unlimited latitude in what they can do. The Islamic Rules of Inheritance do not govern this except that the rightful heir cannot be beneficiaries.
To discuss completing an Islamic Estate Plan, you can set up a 15-minute mini-consultation with no obligation by clicking on this link.