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You are an adult and a child, and your parent wants to marry

You are an adult. If you are still blessed to have parents or one parent, you are also a child and may even be regularly called this by your parent, no matter how old you are. If your parent is single, they may want to get married-often, a discomforting thought to adult children. Let’s walk through an example:

Idris is 72 and has been a widower for about one year. He found a 43-year-old bride, Salma, in Morroco online and is not looking for an attorney to bring her to the United States. His children, Shahina (36) and Siraaj (45), don’t know what to make of this. 

Idris retired a year ago; he has some assets but is not rich. He lives in a free and clear home, now worth $2,000,000 (he was lucky in picking the neighborhood years ago); he has some savings and is receiving social security benefits.  

Shahina and Siraaj never received any inheritance when their mother passed away. They did not expect any since their father lived in the home owned jointly with their mother and had little by way of liquid assets anyway. Now they are worried about a few things:

1. They don’t know who “this woman” (Salma) is or her intentions. They may assume the new wife is in it for the money. What if she is a scammer, starts to control their father, etc? 
2. They are concerned about the family dynamics. How will interactions with grandchildren take place? Family vacations?  
3. Perhaps unspoken in all this is that inheritance from their mother, what was it, and what they are entitled to, is unsettled. Remember, Muslims are entitled to Inheritance in Islam, a fact most American Muslims still ignore.  

Marriage in the second (or third) act

It’s tough to lose a wife to death, and it’s sometimes tough in divorce (depending on the circumstances), and it’s no mystery why men may be eager to get remarried as soon as possible, even though this does represent a massive risk. A marriage, after all, is a grant of trust, perhaps the biggest one you can give. Yet, many men and women provide that grant of trust over conversations on the internet.

There are serious financial and social risks, not just to the people getting married. In this instance, Salma is leaving her homeland, the world she knew. She may end up not liking her new husband or have step-children who do not like her.  

How Idris should handle this

From the beginning, he must be open with his children about the journey he is embarking on. The problem may be that the children won’t accept the notion of his getting married at all. There may also be other aspects to consider; there may be a complex family history. The children may live far away and have little contact with Idris. Assuming he has a good relationship with his children, he should not simply tell them how it will be.

This journey is fraught with risk for himself, his wife, and his children. It’s important to navigate this journey with this in mind. 

Consider Legal options

There are a few things to consider here:

1. If Idris has a health emergency and cannot make healthcare decisions for himself, who makes them? 
2. What happens if Idris loses “executive decision-making ability”? He is fine except for his dramatically diminished ability to resist scams.
3. What of his late wife’s estate? How will this be addressed? 
4. What happens in the event the marriage does not work out? 
5. Is there a need for a prenuptial agreement? 
6. Depending on the nature of the assets, consider an irrevocable trust.  

Inheritance Lock-in

The heirs of Idris’s wife (and his children’s mother, as well as other heirs like parents-in-law) should have their inheritance established. Before long, that may become guesswork, or any injustices can become permanent because of other deaths.  

Without establishing this, Idris’s new wife will become the beneficiary of wealth that does not belong to her and belongs to the heirs of his previous wife. Family members can agree on things, and that is fine. But make sure there is an agreement and nobody gets railroaded.

Community Property 

California has community property, absent a prenuptial or postnuptial agreement. In general, community property means anything earned through “skill, labor, and effort” by a member of a “community” (that means marriage). Retirees don’t make money through skill, labor, and effort for the most part. They already have wealth and earn a pension, social security, investment income, and capital gains.  

In both community and non-community property states, spouses (even from later marriages) have rights to assets in the event of death or divorce. It’s just less than you may expect from a long-term marriage. 

That does not necessarily mean a younger spouse marrying a retiree won’t make like a bandit. 

How a new spouse can clean up by marrying a widower

A lot of the problems that can sometimes emerge in these marriages are the financial dynamics of the household. While in many cases, you will find that both spouses handle finances separately, most of the time, one spouse handles the money. An older man with a substantially younger wife who is smart and confident would often prefer to sede bill paying, spending decisions, and other financial decision-making to his wife. 

I call this “executive capture.” When the wife takes over executive decision-making functions, this is a power (that disempowers the other spouse) that a new spouse can use to transfer wealth to herself and her family.  

How should adult children handle this

Anything I say here will be general, as relationships among family members vary as much as there are relationships, and then some, as relationships change over time. However, assuming the family is close and wants to keep it that way, it’s important to have an organized discussion, focusing on the interests of the various parties. 

1. Make it clear what the mahar will be and the terms of the marriage agreement. Unless the new wife is already wealthy, she probably wants financial security. The family should establish what that would be.
2. Discuss what vetting steps were adequate. What you can do before and after the nikah may be different. 
3. Try to establish expectations. What will the relationship be like, and how will this new wife be trusted?  
4. Some legal options discussed above are often a good guide to examining how an arraignment like this would work. 
5. Perhaps consider not being legally married.  I write about this here.

The Wife’s Path to Financial Security

There are substantial risks for the wife entering marriage as well. A wife gives up years of her life and enters an environment where people may be hostile. Marriage has benefits but ends when the husband dies or divorces her.  

This financial uncertainty is why the wife or her representative will negotiate a maher. It may be a small or even ceremonial gift, or it could be a small (or in some cases large) fortune.

Consider a generous and well-designed maher

Hear me out on this; the financial circumstances of the marriage should be clear early on, lest the relationship devolves into suspicion and mistrust. The children want to protect their father and ensure an estate is left when he passes away. The new wife wants to build a new life and provide financial security.  

Maher is an underutilized resource in the Muslim community. Marriage is a creature of contract by its nature, and maher is a way to accomplish long-term goals in ways that Muslims vastly underappreciate. Putting some thought into maher can reap long-term dividends for everyone. 

Maher can be a cash payment, at the nikah, after death, incapacity, or both. It does not need to be cash, however. For example, it can be the ability to have a place to stay. The husband can pay for education, funding of a business, or a variety of other things. The family must consider what will happen in death, incapacity, a health emergency, and divorce. The maher can play a part in all of these things. 

Example:

A maher can include: 

1. Education for a new wife to obtain a special education teaching credential so that the wife will not depend on her much older husband’s wealth if he were to pass away.  
2. Rent towards living in the family home for three years after the husband’s death. 
3. Cover living expenses for a negotiated length of time.  

The idea is to make the financial aspects of the relationship transparent. The wife gets what she negotiated, but not more (other than her inheritance right).  

In nearly all states, prenuptial agreements are best negotiated by the prospective spouse’s lawyers. Both parties must have independent lawyers. 

Irrevocable Trust Planning

An irrevocable trust is a vast concept that can mean many things, but it differs from a revocable trust (the most common kind) done for estate planning. In the example in this article, a widower did not distribute his late wife’s estate to her heirs. This failure to distribute is a problem that an irrevocable trust can resolve. Transfer what belongs to the heirs to an irrevocable trust instead of selling assets, like a house, and distributing it outright to the heirs if doing so is impractical and could cause hardship. This way, you can respect the Islamic Rules of Inheritance and protect against the wealth of a late wife going to the new wife and her family.  

Irrevocable Trusts can also be used for Islamic Inheritance for older adults, for asset protection for everyone, for tax planning, and has a variety of other uses.  

It’s a conversation

Marriage is a wonderful thing that can bring a level of security but also expose a range of insecurities. Families can resolve these issues using Islamic principles, including Islamic Inheritance, the tradition of maher, and a dose of creativity, thoughtfulness, and compassion.

To discuss some of the planning in this article and website, you can schedule a 15-minute mini-consultation on Zoom with Islamic Estate Planning Attorney Ahmed Shaikh by clicking here.

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