When we plan based on Islamic Inheritance, how do we account for legal fictions?
A while ago there was an interesting story about a man who wants to be declared alive but has had no luck. He disappeared for years only to resurface and wants to reenter his life somewhere. There appears to be no mechanism for him to gain a new birth certificate after he has already been declared dead. A former wife, or the legal widow, opposed undoing the death because she was a financial beneficiary from that death, and could not pay the money back.
The law is full of fictions. This means we say things are a certain way because some goal of society is being met by doing so. Having fictional anything in the law as fulfilling a valuable goal or not is subject to the whims of policymakers.
“Corporations are People my Friend”
What former Presidential candidate said was kinda true, corporations and LLCs have the same rights as people in many respects. They can sue and they can be sued, though they don’t vote. Similarly, adoption serves a legal fiction, where the parental rights of one parent or a set of parents is severed in favor of one or more parents who have no blood relationship with a child. The “child” may not even be a “child” but could be an adult. California allows for more than 2 legal parents for a single child. As of now, this is impossible as a matter of fact but is certainly possible as a matter of law. If Apple Inc. can be a person; a child can certainly have three legal mothers. These are legal fictions we have become used to.
Similarly, a person who is alive can also be legally dead, as I described. An actually dead person can, of course, be legally alive, at least for a time. Estate Planning documents usually do not address the dead coming back to life. These legal fictions are rare. The closest that I have ever seen are for “personal revival trusts” meant for people who are cryogenically frozen after death who expect to wake up, eventually. I don’t do personal revival trusts. Those are just scams.
In Islamic Estate Planning, Living Trust provisions often include simultaneous death or death when it cannot be determined if one person died first or another. It may also address other legal fictions such as adoption and corporations. Keep in mind, for Islamic Inheritance, Islam will govern all of these things. You cannot presume a person is dead when they are alive, and adopted children do not have the same rights as children. You can read more about this in our guide to Islamic Inheritance.
Read about 6 mistakes people make in their living trusts by clicking here.