Ramadan Mubarak to everyone reading. I pray you and your families, with all with your unique struggles and opportunities, find this to be the best Ramadan ever.
I was asked by a reader from within the Muslim community to write about what spouses get in Islamic Inheritance.
The United States crosses a continent with a surprisingly diverse set of legal systems and traditions. California, where I live, is a former Mexican territory. The system of property law as between husband and wife is known as “community property” and is part of the heritage of the legal system of Mexico. That is not the case in other parts of the United States.
Within the United States, there are several legal systems, cultures, and traditions when it comes to married couples and their assets. One thing that is constant throughout the United States is that married couples can make their agreements and decide for themselves how they own their property. Some states have rules, like forced shares that don’t exist in California and Texas. Some states define things like “marriage” differently from each other as well. Whatever the rules are, though, you can always make your own that can supersede the default rules in your state.
My purpose in Estate Planning is not to plan for divorce (usually). Instead, it is to prepare for death and incapacity. Fundamental to Islamic Inheritance is that there are ordained shares that need to go to specific people. But those shares have to be of a corpus of property that belonged to a dead person. One of the major disputes that could arise in inheritance disputes and much of the injustice that can happen in these cases is not inheritance at all, but rather what the corpus of a dead person’s property is in the first place.
Take an example:
Ilyas is a small business owner. He worked 12-15 hour days. He sacrificed a whole lot of time away from his family for years, building a successful enterprise with several employees. His wife, Rabia, has been a homemaker during this time. She does not have any income of her own.
Ilyas feels all the property accumulated is his own. He does not believe his wife owns any of it. Rabia agrees with this.
Is this right or wrong?
Consider this: Ilyas was 48 when he married Rabia. He has four children from a prior marriage, and two with Rabia, who is 15 years younger. Ilyas paid a substantial Mahar to Rabia when he married her. Rabia also had her assets and wealth from her family.
Maybe now, it looks about right. Ilyas is concerned about passing on his wealth to his lineage. Giving too much to his wife might be unfair to some of his children from his perspective.
Ilyas was previously divorced. He is concerned, giving his wife half during their lifetime is dangerous to him.
What if Ilyas and Rabia agreed to split the assets in half between them so that when Ilyas dies, Rabia gets half off the top as the surviving spouse? Does that now become bad?
Property Owned During Marriage in Islam
Islam does not regulate how a husband and wife own property. Marriage is a creature of contract. So if a husband and wife agree that they split everything equally, or they decide certain things belong to one person and other things another, they can do that.
The important thing for me as an Estate Planning attorney is not to advise clients how they should own property between them. It is, however, vital that they understand the consequences of their decisions when it comes to the Islamic Rules of Inheritance. It is also important to understand what the surviving spouse gets and what he or she may be able to live on. If the surviving spouse is relegated to poverty because her share is so small, you cannot blame the Islamic Rules of Inheritance, since that is only part of the picture.
Whatever goes to your spouse after death does not go to your children. Don’t even assume it eventually goes to your children.
Blended families and future possible blended families
As I have written about before, spouses often get remarried after their spouse passes away. For a new spouse, getting economic security, including wealth from a spouse, maybe the point of getting married in the first place. I have previously described this as the “Cinderella problem.” If you own property jointly with a spouse, then die, your spouse owns the whole property. That is haram enough, but subsequently, your spouse remarries and puts the new spouses’ name on the property as a joint owner, which is customary and frequently expected. The orphan’s wealth goes to a new step-parent. Muslim families should actively guard against this issue. If you are a wife or a husband, you cannot expect other people to care about things you did not bother to address. You need to deal with it.
However, when it comes to property owned today (not inheritance), there is a related problem, transferring half to a later spouse. Giving things to your spouse during your life is not prohibited in Islam. It could cause some fitna in the family, though. You would effectively be favoring children from the later marriage than children from an earlier marriage. How this works, though, may be different from family to family.
Just be cautious as you do not want to cause injustice.
Spouse gets what the spouse has, plus inheritance
Spouses often have their property together. However, when we plan based on Islamic inheritance, we make sure each spouse is his or her economic unit. They have separate lifespans and often separate sets of heirs. They start with different parents, who are heirs in Islam only of their children. One spouse can live decades longer than another spouse and have more children.
Say Ilyas has property, represented by an Avocado. His wife Rabia has wealth, represented by an apple. If Ilyas dies, Rabia has an apple. Rabia had that apple when Ilyas was alive. She keeps that apple after Ilyas dies. His death does not give anyone the right to take any part of that apple away from her. Also, Rabia gets 1/8thof Ilyas’s avocado if children survived Ilyas. If children did not survive Ilyas, Rabia gets a quarter of the avocado. That is basic to Islamic Inheritance.
It is that simple, but you have to do it
Other aspects of this make it more complicated. For example, I wrote about how we deal with the family home here. However, none of this changes how much inheritance is due to the surviving spouse.
The thing is, though, if you don’t plan at all; usually, the surviving spouse gets everything. That is simple, too, as an injustice.
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