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Contemporary challenges of Islamic Inheritance law

Updated: Dec 7, 2022

Islamic Inheritance law is divine and has the hidden wisdom of Allah (Subhanahu Wa-ta-Alaa). Many times, it is incomprehensible to our intellectuals, and it's primarily misunderstood not by non-Muslims but also Muslims. Ignorance brings contemporary estate planning challenges. The primary contemporary debate happens around Women's inheritance, Marriage, Polygamy, Allowing or disallowing Radd for Husband or Wife, Murder, Joint ownership of assets (i.e., house, land, bank accounts), No-Muslims heir (or Difference of Religions), and tax complexity of overseas estate planning. One or more of these issues or hindrances (i.e., Mawani) may either award more inheritance share (than prescribed in Islamic law under joint ownership) or completely prevent heirs from taking inheritance. For example, Polygamy has not an issue Islamically but is a significant legal issue.


Women's inheritance

When you attend an Islamic estate planning seminar, you may have heard at least one question from the female side: "How many shares will women receive as per Islamic law of inheritance?" You would hear the answer: One-Eighth (provided she does not have a child). And no discussion occurs as she can get One-fourth (i.e., 25%) if no children or grandchildren, how low soever. This is an important question, and we encourage you to CLICK HERE to get more insight into women's inheritance in Islam.


Marriage

Marriage cannot have implications if the country is an Islamic state country (i.e., Muslim majority countries) and marriage follows the Nikah (i.e., the Islamic marriage ceremony). But where the family laws are not Islamic, the issue raises significant concerns regarding inheritance. If marriage is legally registered even though it does not follow Nikah, there is no concern legally. However, such marriage is not valid Islamically, and the widow or widower cannot inherit under Islamic law. On the other hand, if the marriage did follow Nikah but has no legal status in government, then a widow or widower cannot inherit under legal laws, but he or she can inherit under Islamic law. Unfortunately, not many Muslims know how this complication can impact their estate planning goal.

Polygamy

Not a concern in most Muslim countries but a big concern in Muslim minority countries, There are about 78 countries in the world with at least 25,000 Muslims living. If you have more than one spouse, you may face challenges in your estate planning strategy. You should consult a local Muslim estate planning attorney or lawyer; otherwise, the matter may end in court after death.


Radd case

This is not a significant issue but may become a concern in many cases. Radd (i.e., increase) cases take place when the Total share is less than 100% (or "1" infraction). If no residuary survives, all remaining shares must be increased proportionally except the Husband or Wife's share. This is acceptable by all four Madhab, including Hanafi, Shafii, Maliki, and Hanbali. However, there is a difference in opinion between legal and Sunni Madhab. For example, Egypt and India have legally adopted to increase the Husband or Wife's share in the Radd case. As a result, it will substantially impact the final share calculation, especially if the deceased is left with huge assets.


Murder

There are both Islamic and Legal implications regarding murderers. Islamically, it is clear that a murderer cannot inherit (Jami' at-Tirmidhi 2109, Book 29, Hadith 20). The legal implications may differ from one country to another.

Co-ownerships

Most people have joint assets nowadays, but if not, then you may not face any issues. It's not only a house, land, or business that you can own jointly, but any assets you own jointly, including your bank accounts, would fall under this category. Most joint ownerships are in the Joint Tenants agreement in which if one owner (say the Husband) dies, the ownership automatically transfers to other owners (say the Wife). The o-ownership poses challenges to the applicability of an Islamic inheritance. Your estate plan needs a better strategy than the traditional Islamic Will, especially if you live with assets in Muslim minority countries. Wassiyyah has the solution to ensure your estate plan is compliant without giving away joint ownership.

Non-Muslim heirs

Differences in religions may arise among the deceased and heirs. Muslims cannot inherit from Non-Muslims and vice-versa (Sunan Ibn Majah 2729, Book 23, Hadith 11). There is no concern legally in most Muslim minority countries, but the non-Muslim heirs do not inherit as per Islamic law of inheritance. They may be part of the Testamentary bequest. However, there is a difference between the opinions of Islamic scholars for some of the specially. Please consult a knowledgeable Sunni Islamic scholar for further information if you have any scenarios where non-Muslims are your family members.


Islamic estate planning experts

You may find many Muslim attorneys, lawyers, or experts but not specialize in Islamic estate planning. Also, you will be challenged to find the right estate planning tax expert who is well versed in national and international taxes including but not limited to gift tax, estate tax, wealth tax, inheritance tax, and capital gain tax.


Islamic Inheritance law appendix or Mawarith schedule

One of the challenges for non-Muslim minority countries' courts is that they can not understand and interpret Islamic law of Inheritance and would like to see it in some form that is interpretable, visible, and clear to their eyes. We see the Mawarith schedule in 5-50 pages attached to Islamic Will or Trust and sometimes use a very brief description of Islamic inheritance law, which is inadequate in most situations. The probate court or other related authority does not have time or patience to read and interpret your Islamic inheritance appendix, which is too long and unclear. They would need a modern, mathematically interpretable in 10-15 min; that's what Wassiyyah's solution is about. You can check out more details on the "Islamic Inheritance Appendix" blog post under Wassiyyah.


International Islamic estate planning

In some Muslim-majority countries such as the United States, Canada, Australia, Europe, and others, the attorney's practice is limited to jurisdiction, i.e., State, Province, or Territory. In this case, someone with assets in multiple jurisdictions and/or countries would have difficulty finding the right estate planning experts and services.


Allah, the Most Glorified and the Most High, knows the best. As a human, We are limited to everything and can not perceive it in totality...
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