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I have an updated article on Special Needs issues for Muslims.  It includes the ABLE Act, different kinds of Special Needs Trusts, and a discussion of how you plan if you are the one that starts to have special needs.  Please do read it and share it with those you think may find it useful.

You can find the article on Special Needs here.  Please let me know if you have any comments.

To schedule a 15-minute, no-obligation mini-consultation on Estate Planning for Muslims, click here.

 

 

 

 

What my clients are to do with human remains, the body, particularly organ donation is one that I have struggled to counsel on and is much different from Islamic Inheritance.

In learning about organ donations specifically, I have come across efforts by Muslims to explain why it is or is not ok.  I hope you can benefit from this post.  Maybe you won’t have a definitive answer, but you will start the struggle that will allow you to make a decision and be at peace with it.

Extremism in Defense of Medical Science is no Vice

In the early years of my practice, I did a lot of litigation around medical issues.  I used to take depositions of doctors and had to get to know medical controversies reasonably well. The lawyers at a large firm I worked at all decided to go, as a group, to the “Body Worlds” exhibit.  It was remarkable.  It included a mother and unborn infant, sliced in half.  There was someone playing basketball, his outstretched arm towards the sky, and his brain on the floor.  These were real bodies on display- once living, breathing human beings, using a plastic preservation process to display once-living people in vaguely artistic ways.  All of these people donated their bodies.

I was impressed by the exhibit.  At the same time, I did not understand why someone would permit themselves to be put on display in this manner, with a sense of flair and artistry that was not suitable for what I was seeing.  It was disrespectful and undignified, at least in my view.

In elementary schools, it is common for children to dissect frogs.  Medical students and other students of the anatomy need human corpses to slice up.   Can we, for educational purposes, donate our bodies as specimens for medical students cut up? How about using those remains for a museum exhibit?

For the Islamic Medical Association of North America (IMANA), there appear to be no restrictions on this kind of thing.

The problem with this type of conclusion, outside of any fiqh concerns (which I am not that interested in now since I’m not considering it), is that it’s hard to imagine most Muslims buying this.

You have honor, as does your body, which Allah has entrusted to you.  Instinctively I’m not too fond of the idea of donating your whole body.  However, if you prefer this, you have the Islamic Medical Association of North America to back you up.

You Have Dignity, Muslims Have Shown It

Muslims have well-founded rules on how to treat the human body.  We know that there is dignity in your body, and we cannot defile it.  We don’t do autopsies (though we make exceptions), we don’t cremate bodies, we don’t keep bodies in a freezer to give a party planner time to pick out venues and work with their schedules, book guest speakers and live music performances.

In most Muslim communities, the wheels are in motion for the burial right away.  We wait for a death certificate (or a certificate for burial), but not much more.  One fantastic thing about the Muslim community is that we prioritize burial like no other. As a general matter, we are better at it than anyone I have ever seen.

Whenever I advise Muslim clients about burial instructions, at least clients in the areas I serve most frequently, I often (not always) tell clients not to worry too much about it.  Those who conduct Janazah and burials in the Muslim community don’t need your help. If you already bought a burial plot in a cemetery, you can write that down with information about the burial plot you purchased.  If you have a preferred person to conduct the ghusul in your community, that is great.  Most people don’t have these preferences.

One of the instructions that we have on burial is that it needs to happen as quickly as possible.  A significant concern with donating organs (other than the dignity issue) is that it will delay the Janazah.

Organ Donations

There are two times you can donate your organs.  When you are alive, and when you are dead.  You can give away more of your body when you are dead than when you are alive (obviously).  Both situations have Islamic considerations.

The client concerns I deal with regularly have to do with organ donations after death.  There is a significant difference between donating a life-saving organ to someone who needs it and displaying your organ for a museum exhibit.

While we might assume one way a doctor can order up a 3D printed heart available the next day, that kind of technology does not exist now.  Now doctors need to get them from human bodies.

As you might imagine, the answer to “can I do this” is not as clear in Islam.  Almost ever since transplant technology became available decades ago, fatwa councils have been telling Muslims since the 1950’s that donating organs is beneficial and that you should do it.  If you think about it, societies with large Muslim populations would have difficulty saving lives through transplant technologies if there was a widespread view that organ donations were haram.

Death, Redefined

To further accommodate medical technology, governments, and religions worldwide rapidly redefined the definition of death itself.  It used to be that if your heart was still pumping blood and you were still breathing, you were alive.  Those days are long gone.  We legally define “brain death” as death.   Brain death is not a “persistent vegetative state,” It is not a coma, but where the brain is not working at all.  This whole thing happened to accommodate organ transplants.

Still, I know many Muslims are deeply uncomfortable with organ donations.  I don’t think it is clear that you should be an organ donor.  Before you decide, give this careful consideration.

A Helpful Resource

To help you make this decision, you can do worse than consulting with the University of Chicago’s “Initiative on Islam and Medicine.”  They have a helpful infographic on the various considerations for Muslims.  While it is clear Dr. Asim Padela (who leads the initiative) has an opinion, and the fact that it has logos of transplant agencies on it gives you a sense of what that is, the information presented is objective.  It does not hide the fact that scholars do think organ donation is prohibited in Islam and why, at least in general terms.    They also show the alternative as well as a description of the need.  Check it out here.

This subject is about the dignity of your body and your legacy.  It is not a subject where I would point my finger at you and tell you what to do.  If you struggle with it, you are not alone.

To schedule a 15-minute consultation for Islamic Estate Planning, click here.

 

I am planning on doing two different presentations this weekend.  One is for Muslims for the Islamic Center of South Bay- LA (Lomita) Masjid Community.  This is going to be online (of course).  The idea behind this presentation is to provide a way for people who are not ready for an Attorney to do their own Islamic Inheritance and Guardianship plan.  Of course, I also plan on going over the basics of Estate Planning for Muslims.    It is on Friday at 8:15 PM.  The flyer is below, but you should just go here to sign up.  If you want to set up another presentation for your group on guardianship, Islamic Inheritance, Asset Protection, or Charitable Planning just let us know.  

I am also doing a presentation (with another lawyer and a financial advisor) on divorce.  This is not specific to the Muslim Community at all (hosted by Music Network One in Tustin), but if you are interested, you can get the invitation here.  Divorce is a major issue in Estate Planning and I am always happy to address this as well.

 

Many Muslims, including Muslim scholars, are unaware of how inheritance problems can be a remarkable engine for fitna in families.  Ask an older adult estranged from his brother for 20 years or more what happened; he will often (perhaps usually) trace it to an inheritance conflict.  Often such conflicts can be avoided with better advice.

Muslims are not supposed to cut off family ties.  It’s inherently painful to cut out your brother or sister from your life, but people do it all the time.  Bad inheritance planning tends to encourage this.

There is good news, though.  Allah has ordained a system of inheritance in the Quran.  It is objectively impossible for human beings to come up with a better system.  When a person plans inheritance correctly, the heirs will understand the person who passed away was a believing Muslim.  The shares are what they are.  They are not a result of manipulation of the elderly, favoritism, or the mysterious vanity of an old person.  Heirs know inheritance came from Allah. For heirs, there is nobody to angry with, nobody to fight, and only more reason to be grateful you are a Muslim.

Islamic Inheritance is a beautiful system and mandatory for Muslims, yet most Muslims ignore it.  Indeed it’s rare to hear a khutba that mentions it.  However Shaykh Yasir Qadhi recently started an answer on inheritance by claiming he had a simple answer people unfortunately problematize.

In the Quran, with the context of the Islamic Rules of Inheritance, we read:

And whoever disobeys Allah and His Messenger and transgresses His limits – He will put him into the Fire to abide eternally therein, and he will have a humiliating punishment.

Believing Muslims should be concerned if they are doing an injustice to their children and being disobedient to Allah by privileging their desires.  It happens all the time.  Problematize means people creating problems in need of solutions.  Inheritance mess-ups are serious problems that destroy families and should not be taken lightly.  As you will see below, that is plainly not the case.   Unfortunately, Dr. Qadhi’s answer only goes downhill from here, and I will explain why he offers exceedingly bad advice.

Some Context To Our Discussion

You can see Dr. Qadhi’s explanation here in his own words.  I will add to the facts to help illustrate the issues better for this format.

Abdullah is a 76-year-old widower.  He has three adult children, two sons, Ilyas and Jordan, and a daughter, Sarah.

Ilyas is a successful real estate broker,  married, and has two children.  Jordan is a successful doctor and married with three children.

Sarah is a single mother with three small children who recently had a difficult and expensive divorce.  She receives minimal child support, which is often late, no spousal support, and has been struggling to make ends meet.  She has three years of college and cannot get a well-paying job.

Her father, Abdullah, thinks that because the sons are successful, he can ask them to disavow their right to an inheritance so that Sarah gets everything.  The sons say they have no problem with this.  However, Abdullah wonders if leaning on his sons puts him into sin, as Allah ordains shares for both the sons and the daughters.  In Islam, Jordan, Ilyas, and Sarah all receive an inheritance from Abdullah if he dies before them.  This inheritance goes to his children not because Abdullah loves them, because they need the money, they married the right person or any other consideration. Jordan, Ilyas, and Sarah are to get an inheritance from Abdullah as Allah has ordained it to be so.

Sh. Yasir’s advice (to paraphrase) is that the father can ask his sons to give up their inheritance, so long as there is “no pressure.” They can promise this to their father before he dies so that he can feel better.  Allah has ordained inheritance as the right of the heirs.  Heirs are within their rights to turn it down or give it away. However, a “technical point,” according to Sh. Yasir, is that the sons could take inheritance after death, notwithstanding their promise to give it all to their sister.

Your promise is part of your Iman, except here.  There would, of course, be consequences to reneging, something that will have repercussions for the sons.  While he does not mention implications for others in the family, those would often follow.

 Technically, You Need Coffee Beans to Make Coffee

Sh. Yasir is not factually wrong describing Islamic inheritance, and it is not my place to comment on what is or is not a sin in this instance.  However Sh. Yasir’s advice to Muslims is nothing short of horrifying. It illustrates that it is possible to discuss the Islamic Rules of Inheritance without incorporating an analysis of what inheritance is in the first place.  Now Sh. Yasir demonstrably knows what inheritance is; he, however, dismisses it as a “technical point.”

As a technical matter, you need oxygen to breathe.  Technically, you need a dead person for there to be any inheritance.  You also need to know the identity of the survivors, which you cannot know without knowing the future.  It’s not a trivial point. One thing we know about the patriarch we are calling “Abdullah” in our hypothetical is that he is alive, so he is incapable of giving anyone an inheritance.  Inheritance from you (a living person) does not exist to solve problems you have today.   It is not a device you can use to resolve today’s inequities or bring someone in poverty today into prosperity.  It is something Allah has ordained for your wealth at some indeterminate time in the future.

Abdullah will (perhaps) have things he cannot take with him when he passes to the next world, whenever that is.  He will (probably) leave people behind, but he does not know who exactly, or what their circumstances will be.

It’s Difficult to Make Predictions, Especially About the Future

Abdullah’s planning should not incorporate knowledge of the unseen he does not have. What he is doing here is assuming the world as it exists now will not change.  In the coming years, Sarah may marry someone wealthy; she may become a successful entrepreneur, or her son may sign to become a point guard for the Los Angeles Lakers. Sarah may have also become remarried to Jack, a convicted felon and a con artist. Abdullah’s sons Ilyas and Jordan may continue to be successful, or they may become broken men leaving behind a wreckage of bankruptcy, substance abuse, unpaid child support, and tax liens. Or they may be dead.

If Abdullah dies six years later, then Jordan dies ten days after Abdullah, leaving behind five children (he has had more since), are the orphan children bound by their father’s promise?  Maybe, and maybe not, but Sarah and other family members may feel differently than those children.  Family gatherings may start to become awkward, or they may stop happening, for this or because of thousands of other hypothetical future scenarios.

According to the Social Security Administration’s actuarial tables, Abdullah, who in our example is 76, may reasonably expect to live for more than ten years.  If Abdullah makes it to 85, he may well yet live for another five years, according to the tables, which go on to 119 and assume you only have months to live for several years.  A whole lot can happen between now and Abdullah’s death, which the actuarial tables don’t have the power to predict.  Only Allah knows.

We should be clear on what Sh. Yasir Qadhi approved: A promise by sons to give away something they may never get at an indeterminate point in the future to help someone who may not need it, and even if it could help, it may be criminally unwise to fulfill such a problem.    The promise here is illusory and maybe even worse than that.

Inheritance May Not Do What You Think

Inheritance is a category of “sudden wealth.”  Heirs often spend inheritance rapidly.  While it can ease burdens for a time, it may be ephemeral.  People who started broke and received sudden wealth like inheritance are often broke again within a few years.  I have seen several situations where a woman lost all of her inheritance because her now ex-husband “borrowed” it all to start a business that ended up failing or other similar situations.

A Guide to Parental Fitna-Mongering

Unfortunately, here I must introduce you to the world of parents who pit their adult children against each other over wealth.  It sounds (and is) bonkers, but it’s supported by a history of many inheritance disputes, including fictional ones in popular literature going back centuries.  I once worked on a case where the dead mother set up her estate for a conflict between her daughters, then offered increased inheritance to one daughter if she filed a lawsuit against her sister (and the mother’s only other heir).

There was no requirement anyone wins the suit to get more inheritance, only that she sue her sister.  It was diabolical. But if you are familiar with how bad family politics can get, you probably won’t be surprised.  You should be grateful Allah has ordained inheritance in the Quran, and that parents cannot do whatever they want.  You would be surprised how frequently this power is poison.   We know from the Quran your wealth and your children are a fitna.  It’s possible to handle this badly.

So here we go to Abdullah’s wishes when it comes to inheritance.  His desire is a “halal” way to do what he wants by asking his sons (with no pressure) to make a promise they have no way of knowing they can keep. Sh. Yasir is also clearly aware that the failure on the part of the sons to make good on this outlandish promise will have consequences.  What are those consequences?  One result may be becoming dishonorable in the eyes of their sister and her children.  It means family relations will be damaged.  Siblings and cousins may not speak to each other, perhaps ever again.

But maybe the sons will have reasons not to give over their inheritance if and when that happens, which is quite literally their Allah-given right.  It is also possible Sarah or her heirs would not truly understand why and be hurt and offended.  What if one of the sons just went through bankruptcy at that exact moment (a fact you usually don’t advertise)?  What if Sarah has married someone she is fiercely loyal to that the sons knew had previously cheated a prior wife of her wealth?   Some people may be justified in acting one way; others may feel hurt.  Abdullah won’t be around to see the consequences of what he wrought.  His legacy may be descendants who hate each other.

Deal with Today’s Problems Today

Abdullah is concerned about his daughter Sarah. It is his responsibility, as well as the responsibility of Jordan and Ilyas, to deal with this now.  Abdullah can write Sarah a check, or help her in another way. Ilyas and Jordan are men, and it is their duty to look after their sister if she is struggling.  Abdullah is doing absolutely nothing for Sarah by leaning on Ilyas and Jordan to give up future inheritance that may never happen.

Another thing Abdullah can do is talk to his sons about their responsibility in taking care of Sarah after he is no longer around.  Yes, in Islam, sons get more inheritance than the daughter.  Jordan and Ilyas’ obligations to their sister will exist even if they never see a nickel of inheritance from their father.  What should give Abdullah peace of mind is not a meaningless promise about some indeterminate time in the future.  Rather, it would be the comfort of knowing he raised sons who have accepted their responsibilities.  Abdullah can incorporate this into his Islamic Estate Planning without changing shares around.

Instead of Abdullah asking his sons to give up any future inheritance, he should ask them to make sure they will do what they can to help and support Sarah when and if she needs it.  That should be enough for everyone.

What A Patriarch (or Matriarch) Can Do

Abdullah’s Islamic estate planning may also cover other potential perils for heirs, like lawsuits, divorce, or bankruptcy.  So, for example, if one of the sons is not able to directly support his sister, because he is going through a lawsuit, there could still be a mechanism to help Sarah.  If there is nothing in Islam that prevents Abdullah from creating a plan that is protective of his daughter.  However, if it’s Abdullah’s goal to hunt for loopholes around the shares ordained by Allah through some sort of “technical” path, things can start to get ugly.

Islamic Inheritance is better because it is a system of rights and responsibilities Allah has ordained.  This system helps preserve peace in families as few other things can.  It’s better than anything you can come up with because you don’t know the future.  If you try to improve on the system of inheritance, you will probably cause needless fitna.  If you decide to write a fictional novel about Islamic Inheritance done correctly, it will likely be incredibly dull.  That is as it should be.

What Shuyukh and Imams can do to avoid giving bad advice

Islamic Inheritance is a test for Muslims to accept Allah has ordained their wealth in a specific way.  It is often not easy for a lot of Muslims to take.  I have often been told by Muslims asking me to fudge on the Islamic rules, “this is what I want.”  Yes, you can do what you want with practically any lawyer, but Islam is not the religion of hedonism.  We don’t get to do whatever we want. Allah has dominion over all that is in the heavens and the earth.  It’s not your wealth to do with as you please.

The dilemma for those who provide advice on Islamic Inheritance, which includes Shuyukh, Imams, and others with knowledge on the subject, is that it’s possible to construct a way to seemingly achieve an old man’s desires through the use of “technicalities.” However, you need to be concerned that by doing this, you may be creating a monster that can harm the family.  While everything Dr. Qadi said may technically be right, the risk of fitna for the family in exchange for no real benefit it just too high.

In this case, think of what Abdullah, in our example, wants to do.  Abdullah may have a political gripe with Islamic inheritance.  He may also simply be concerned about his daughter’s welfare when he is gone.  If it’s the former, indulging his vanity makes no sense and provides benefit to nobody.  If it is the latter, there are better ways to accomplish this without risk of causing fitna in the family, as I described above.  Provide inheritance advice that results in the least potential harm to the family.

When it comes to inheritance, the right thing is what Allah has ordained.  Don’t try to improve on this.  You will fail.

To schedule a 15-minute, no-obligation consultation over zoom to learn about the Islamic Estate Planning process, click here.