I have had several cases in the Muslim community involving widows over the years. In the United States, for the most part, by tradition and because the law and the way people tend to own real estate, everything tends to go to the surviving spouse, usually the widow (men tend to die sooner and marry younger women). This result often happens if you do something, like a will or a living trust that does not take into consideration Islamic Inheritance.
Here is a hypothetical scenario:
Kinza is 38 with five children, ages 12 to 2. Her husband, Shakir, 43, just passed away from a stroke while lifting weights at a local gym. Shaker left behind his wife, children, and parents as heirs. Kinza and Shakir never did any estate planning together. They owned their home as joint tenancy with right of survivorship worth about $800,000 with a $300,000 mortgage. Kinza owns a part of an apartment building from an LLC her father had set up but has otherwise been a homemaker, with no source of income herself. She had a bank account jointly owned with her husband for about $30,000. Also, her husband had a 401(k) from his employment as an engineer worth $200,000, and Kinza is the sole beneficiary. His employer also had life insurance as an employee benefit, which paid $150,000, again, to Kinza.
Why the Widow Takes all
In some ways, Kinza, the widow, being the successor for everything makes sense, and would be the natural-sounding way things would work. There will be no probate under this scenario since Shakir left no probate property. Everything passed to Kinza. Kinza needs to do an affidavit of death to get the house in her name. For the bank account, share a copy of her husband’s death certificate, fill out a form, and Shakir’s name is off the account. For the life insurance and 401(k), she will provide a copy of her birth certificate and prove she is who she says she is. In the case of the 401(k), she will do a “spousal rollover” which allows for the account to be her IRA. She would pay nothing on it until she starts her withdrawals, which by law won’t need to be for more than three decades. Her IRA is withdrawn based on her younger age, rather than her late husband’s older age, which is an advantage.
One thing missing from all of this is what do the children get? What do the parents get? Nothing. Kinza gets it all. This result is not satisfying for a few reasons. The first is that in Islam, there is a mandatory rule of inheritance in specified shares. The surviving spouse getting everything is expressly prohibited in the Quran.
Now maybe it is the case that the surviving parents don’t care about their inheritance. They are elderly at this point, concerned about their grandchildren and daughter in law and will be willing to waive any right to inheritance. Inheritance is a right of the heirs; they can turn it down if they want. But then, what about the children?
The children are at this age too young to care about inheritance for themselves. They are orphans, however. Kinza needs to be concerned about the following verse in the Quran:
Indeed, those who devour the property of orphans unjustly are only consuming into their bellies fire. And they will be burned in a Blaze.
So this is pretty serious stuff. It does not matter that Kinza got everything from her husband; the Quran says she gets 1/8th from her husband. She cannot do an injustice to her children. She does consider the fact that she is taking care of her children. Naturally, what she spends for her home, food and such, all benefits her children as well as herself. No lawyers or courts are involved here. It’s almost automatic. So maybe she is ok just taking everything, raising her children and not worrying about it?
I would say it is a worry. It continues to be Kinza’s obligation to take care of her children. Of course, she is a parent to her children. There are legitimate expenses for the children for which Kinza may use a child’s inheritance. However, Kinza needs to have some system in place of separating her wealth, and the wealth of the orphans, who are individuals and not a unit. Every one of her children gets a specific share. Allah ordained these shares in the Quran. So it makes sense for her to not be slipshod about it.
It is easy for Kinza to squander everything, unintentionally. It happens quite frequently. I have had multiple woman clients who reported to me that they had married a husband that took all their inheritance. Kinza may end up marrying someone who turns out to be unscrupulous or otherwise corrupt with her (and her children’s) money. As the years go on, she may also get into a car accident, or someone could sue her. So she needs to not only make sure she is not the one doing an injustice to her children, but she is also guarding against injustice by others.
The solutions here can vary. But California is a community property state. Kinza and her husband never had a property agreement themselves, so she did not know what her husband intended before she became a widow. However, given that she was a joint owner in everything and was a beneficiary, it is fair to say she was the 50% owner of all the property already. So she can safely say 50% is Kinza’s off the top, not as an inheritance, but because this was her own to start. Of course, if she divorced Shakir, instead of being Shakir’s widow, Kinza would get 50%.
The next thing she will do is divide up the inheritance. Say Shakir’s parents have waived the right to inheritance (which will never be a given, even if parents-in-law are spectacularly wealthy). She will need to create a way of cordoning off her assets from her children’s assets.
Dividing it up
I wrote an article about planning with the family home for married couples, and if you are one, you should look at it. Of course, Kinza as a widow has a different situation.
Kinza needs a place to live. Her husband was paying a mortgage on the home. So she either needs to start playing the mortgage, or she needs to move. There is equity in the house, and at least ½ of the ownership belonged to her husband. Similarly, ½ of the 401(k), ½ the life insurance (arguable) also belonged to her husband. Her portion of the rental property that her father gave her will remain her own.
What Kinza will do depends on her plans for the future and the availability of resources and help. She has options here. In similar situations, I have created trusts, deeds of trusts, and business entities like limited liability companies. All this depends on the kinds of assets involved. I would also develop systems that protect the inheritance of the orphans, usually through the trusts or business entities. We do this in service of Kinza’s knowledge that she needs to look out for the interests of orphans and not just the daily struggles of the widow. For someone who just lost her husband, who was the sole breadwinner, this is a great test.
It is a test some Muslim women go through, being a widow. It is especially bad when they never bothered to plan when married. Most people in this situation would keep everything. It’s easier, requires no lawyers, but with the downside that it is unjust.
To avoid injustice to your family, make sure you have a plan and it’s up to date.