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At a family Iftar, think about this…

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IftarRamadan Mubarak.  I know we are a few days in.  If your family is anything like mine, you place a lot of emphasis on iftar regularly with friends and family, maybe on we weekends or maybe most days.  One of the great things about Ramadan is how many of us see more of our loved ones more frequently.  We do a lot of things that are good and beneficial more frequently.  That includes prayer, charity, reading the Quran, and manage to do more of everything with 15-hour fasts (more or less depending on where you live).

We prepare for the next world, knowing that many people who were here last Ramadan are no longer with us. We often think of family members that were here years ago and pray for them.

If you have minor children, you should seriously think about guardianship– who would be a guardian for your minor children if you cannot be around. With more people you trust around at iftar, this is a good time to think about it.  This is something you should think about even if you have already named guardians for your minor children some years ago.   Guardianship is not adoption, which is a different legal process where children take on new parents.  Rather, guardianship is someone appointed by a court to take care of the needs of a child.  Often this is a family member, but as I point out in my Muslim Guardianship Guide, it could be a lot more complicated.

My guide, which has been revised and updated, includes free resources such as a nomination of guardian form.

In the guide, we cover:

Recent immigrants with no family in the US

When parents disagree on who the guardian should be

Non-Muslims family members

And more.

Check out the guide, and if you have any young parents that you think may benefit from it, please forward the link to them.

 

 

Guide to Secret Marriage and Illegitimate Children

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secret marriage and illegitimate childrenFor a lot of men (women too, but let’s leave it at men), life can get complex.  Instead of focusing on the “why” let’s talk about how planning for Islamic inheritance deals with some of this complexity, especially when it comes to things like “illegitimate” children and “secret marriage.”

Islam prohibits Zina. You already know this. It is legal in the United States, though some states still have the crime of adultery on the books, unenforced. The term used for children who are born out of wedlock for much of American history is “illegitimate” or “bastard”- the term “illegitimate” is still used. However, the term in some courts is “non-marital child.” The courts and system of law do not want to imply that a child is somehow inferior to a child that was born in wedlock. Indeed, they are not. However, I will use the term “illegitimate child” here since that is the term most commonly known.

“Illegitimate” still matters in state law

Historically in our laws, illegitimate children did not have any right to inheritance through intestacy. Now they do. This right is not automatic though. Bear in mind there is no such thing as a “right to inheritance” per se in much of the United States (especially not California), this is just a right that occurs when there is no will or living trust and if there is one, it somehow forgets to mention an illegitimate child. But still, don’t assume this will happen. As was shown in a recent California case, it is necessary to either establish paternity before death or have the father acknowledge the son or daughter. If neither of these things happens, illegitimate children get nothing.

The legal system still has the problem of people just popping up after death and claiming to be illegitimate children to get their inheritance. There should be some way to control this.

Children born under wedlock are presumed to be marital children. Of course, presumptions are not always right.

In Islam, there has been no change in the view that a child from Zina cannot be a beneficiary of the father’s estate. A child may be the beneficiary of the mother’s estate. They can also be the beneficiary of the father’s estate through the wasiyyah, which is the up to ⅓ of an estate that can go to recipients, including family members not entitled to inheritance in Islam and charities after death.

Children of Zina and “Illegitimate Children” under State Law are not the same thing

Muslims can get married in Islam without getting married under state law. In Islam, getting married can be quite straightforward. It is a contract between two people, and there need to be two witnesses, and a gift is involved, though the marriage may be valid before anything is paid or even explicitly agreed. That is all. There is no requirement that an Imam officiate, or that there be a written document, a blood test, a waiting period, “pre-marital counseling” or much of anything else. Men can marry women who are Muslim or people of the book. I have recommended people who don’t want to get married under state law (and there are valid, non-shady reasons to do this) create a cohabitation agreement. However, this is not a formal Islamic requirement.

In the various United States, there are a series of rules governing marriage. Often you cannot marry right away (there are exceptions), and you often need to jump through several hoops. In general, Marriages are public records that anyone can read. There are exceptions called “confidential marriages.” These are legal under state law but are otherwise secret information not available to the public.  Sometimes people get married in confidence to avoid judgment from a difficult family situation.  There would still be a way to prove the marriage though, say in an inheritance dispute.

The Rise of Secret Marriages

So this is where we get to the widely condemned practice of some Muslims: Secret marriage: Where a man decides he is going to marry a woman in a “drive-by nikah,” often a second or third wife, without telling his first wife, his family, his community or anyone else, except the two witnesses. He conducts all the minimum formalities of marriage in Islam. Such unions can last days, months, years or decades. Sunnis cannot get married short-term if they intended that from the start. Shias can get “married” for short term contracts, a practice is known as Mu’ta, but no spousal inheritance rights are created. I address Shia inheritance rules (and Sunni rules of course) in a recent book on Islamic Estate Planning.

Secret marriages are not limited to Muslims of course. Non-Muslims do a lot of it. Of course Non-Muslims and Muslims also the option of adultery. It’s just that for Muslims, nikah is easy to do, and for men, being married is not a bar towards getting another nikah.  Also, adultery is haram, though I realize this fact does not stop a lot of Muslims.

Secret marriage is often the crime of bigamy, especially when people get married in a way the state recognizes, then marry again the same way but in secret.

With Muslim men though, there is often no need to hide the first marriage from the second wife. Sometimes the first wife knows about the second wife as well. The secret may be from everyone else. However for purposes of this article, when we discuss secret marriages, it means secret from the first wife.

It Gets Rocky and there is a Baby

So it may not a big surprise that secret marriages often do not work out over the long term. I don’t think anyone has done studies, but my somewhat educated guess is that they fail more often than marriages that everyone knows about. If there is a child comes from this marriage, it gets complicated.

We cannot characterize the child of a secret marriage as illegitimate in Islam. However, under state law, the child is illegitimate (or a non-marital child depending on your sensibilities).

The father, who may have had a complicated relationship with the baby’s mother, may not see or publicly acknowledge the child.  He may pay child support under the table that the child never knew about.  This father can easily have an heir in Islam that is not entitled to anything under California law. The man’s other children from the first wife and the first wife herself, may not even know about the child’s existence. It is a formula for injustice to orphans. Here you have a child who is legitimate in Islam, treated as illegitimate under state law. That is a mess.

How to fix this

Secret marriages, whatever you think of them (and that view is probably negative) are just a fact of life. Men sometimes lead complicated lives full of secrets. Since “drive-by nikah” is not usually zina, we will have more children that are illegitimate under state law but completely legitimate in Islam. However, both men and women should plan to avoid injustices that come from this culture. Denying someone their rights to Islamic Inheritance is serious.

1) Acknowledge all children and fathers

Sometimes this is complicated. Men are sometimes too frightened and won’t own up to their actions with family members; the relationship with the child’s mom may be too complicated. It may be easy for me to say, don’t keep these secrets since they blow up later on in unpleasant ways, but you already knew that. So you will need to keep a set of documents and correspondence that acknowledges this history and keep it with a trusted source. Whoever it is that witnessed your nikah should perhaps also know about the children that may have resulted from this relationship.  Mothers should document who the father of the child is so as to protect the child’s rights.  It’s amazing how often women want to keep this information secret.

2) Get your own lawyer

You may need to have a lawyer that is different from your first wife’s lawyer. You need to maintain confidentiality and attorney-client privilege. In Estate Planning, it is common for a husband and wife to hire one lawyer. A single lawyer means loyalty to both, and an inherent conflict the lawyer would not be able to resolve.  A husband and wife have somewhat different interests at this point.

Note that often by default in American culture and under the legal system, everything goes to the surviving spouse. Giving everything to the surviving spouse is impermissible in Islam. However, even the comfort you may have that the inheritance may end up with your children (not necessarily the case) definitely won’t go to a secret child from another woman.

3) Men may need to accept the need for some public action.

Be named as the father in the child’s birth certificate, get partial custody and pay child support through a legal process. At some point, men need to own up to what they did and deal with the consequences. If people find out, they find out.  This is far better than continuing an injustice.

 

 

Nursing Home Care and Medi-Cal: A Brief Guide

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Nursing home and Medi-Cal recoveryIf you are going to map out your family’s financial future, you need to consider the costs of nursing home care seriously. I know what a lot of Muslims think though, both parents and adult children: that would never happen. Children, children-in-law, everyone else, at least in the abstract might be adamant that this would never happen. Unfortunately, it is often unavoidable.

Here is a hypothetical that might help explain the problem:

Elyas is a 78-year-old widower in Santa Monica. His children, sons Salman, Younus and daughter Bilquis, are all adults, married and with children of their own ranging in age from 2 to 9 years old, though all of them have toddlers. Salman lives about 40 miles away, while the other children live outside California.

Salman has discovered, after visiting his father, that Elyas has dementia, and it is deteriorating rapidly. He knew that his father was behaving strangely, and wants to help.  So Salman brought his father home to live with him in Orange County, California. However, he found this was a problem. His wife tended to toddlers all day; she was not able to meet Elyas’s needs. Elyas did not recognize his daughter in law or grandchildren. Often, when Elyas saw them, he thought they were intruders about to attack him. Salman was too dangerous to have at home. He had no choice but to send his father to a memory care facility.

Many ways to need long term healthcare

An elderly adult like Elyas can become too dangerous to keep at home, which is an obvious case for getting help. But often, people prefer to stay in a nursing home to not be a burden to the family. Having a child, a daughter in law or grandchild deal with the day to day drudgery and indignities can be a bit much. There may be a need to administer many medications; there may be incontinence or other issues. Maybe there is a need for in-home care, or outside the home care, but there may be no ready way to pay for that.  This is not a remote issue.  Someone turning 65 today has an almost 70% chance of needing some sort of long term care in the future.

Costs can be massive

Nursing homes can be costly. To those with experience, this is probably an understatement. Memory care, in particular, can be a six-figure annual outlay. Someone like Salman, or even all the siblings combined, may not have the financial capacity to cover these costs. Families are often looking for another option to pay for nursing home care.

Long term healthcare insurance is a good option, but it can be expensive or impossible to get. Regular health insurance would never pay for nursing homes or other sorts of long term healthcare. Most people do not have long term healthcare insurance or an easy way to pay for long term costs themselves.  If they did, it may mean dipping into expenses like their own housing and education needs.

Medi-Cal (California only)- It’s for the middle class too

So this is something I don’t do a lot when I write here: I am limiting my discussion of this important topic that should be of interest to virtually every family in the United States to California law. The reason for this is that Medi-Cal (or Medicaid in most of the rest of the United States) is a state-specific program and if you are outside California, the information (as opposed to the issues) may not apply to your family at all.

We know of Medi-Cal as insurance for the poor. After Obamacare passed, there was a massive expansion in the program. The government, in general, does not look at assets, but income.

Medi-Cal is also not just ordinary insurance. It covers things virtually no other health insurance program, including Medicare (which is healthcare or seniors), does not include- long term care.  It is common for seniors to have both Medi-Cal and Medicaid at the same time. So someone like Elyas, even if he owns a home, might be eligible for it. So long as Elyas qualifies for Medi-Cal, his children do not need to worry about paying for his nursing home. Elyas does not need to sell his house or get a home equity loan to pay for long term care.

Medi-Cal eligibility used to be a massive project for many. The elderly purposefully impoverished themselves to qualify for the program, leaving themselves in a state of poverty. They did this to be eligible for healthcare for the poor so they can get long-term healthcare.

In general, though, a lot of what people used to do to get qualified for Medi-Cal is no longer needed. You can get Medi-Cal if you at 138% of the federal poverty level or if you meet a variety of other situations. Being over 65 is one of them. It is very common for people with million dollar homes to get Medi-Cal. It is an essential social safety net that allows people to keep their homes while undergoing a massive necessary expense.

First comes Healthcare, then comes “Estate Recovery”

There is one massive caveat about Medi-Cal though: The government is obligated to recover what it spent on medical care from the assets of the deceased. So after Elyas dies, say he owned a home in Santa Monica, California, the government may be entitled to “recover” from what amounts to Elyas’s children’s inheritance.

While Elyas is alive, the government does not “take away” his home. They also don’t place a lien on the house. They do have a statutory right of recovery though. The family must notify the government when Elyas dies. However, the government’s power to recover comes with some significant limitations.

For those who die after January 1, 2017, the rules regarding Medi-Cal recovery have become much more favorable for families. The older rules are different and outside the scope of this article.

Medi-Cal does not try to recover for “ordinary” medical care anymore. So just because a loved one had Medi-Cal does not mean the government will start collections after death. The state will recover only for services that federal law requires be recovered (Medi-Cal is a joint Federal/State Program).

So nursing home care, intermediate care for the developmentally disabled, home and community-based services and a few other programs are subject to asset recovery (here is a complete list) is subject to asset recovery. So some of the most expensive items can subject a family to the loss of the family home. But California now makes this all avoidable. Unlike in the past, it does not require people to impoverish themselves and give everything away for the privilege of having the government pay for a nursing home.

We Need to Define the “Estate” in “Estate Recovery”

California defines the term “estate” narrowly, as essentially the probate estate. Probate is a court-supervised process for making distributions of a decedent’s estate. As a general rule, if you need a dead person’s signature to transfer something from one person to another, you have probate.

There are however ways of transferring property outside of probate. While some of them may be problematic for Muslims (and non-Muslims), having property in a living trust is likely the best way to do it. Assets that are in retirement plans, like 401(k)s, are not going to be subject to recovery assuming there was a beneficiary designation that avoided probate and did not give away everything to the government (some people do this).

How to handle this

If you are thinking about long term care and how it might impoverish your family’s wealth, you should consider revisiting estate planning. Of course, you need to plan for Islamic Inheritance. But for this to work, there needs to be something to inherit.

To set up an Islamic Estate Planning appointment with our office, you can click on this calendar link.

New Guide: Islamic Living Trusts

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I have a new comprehensive article up on my website now on what an Islamic Living Trust has and why it is essential. It occurred to me with all the content I have written about Islamic Inheritance and Islamic Estate Planning. I have never done this particular article before or sent out an email about it. Please check it out and let me know if you have any comments.

You an also share it with any friends who may want Islamic Estate Planning for their own family.

Note: My post last time around had an error, where both parents had boy names. That was not intended. Anyway, I changed that. If you are interested in my article about problem children, check it out.

Have a wonderful weekend!