Islamic estate planning can be challenging for both lawyers and their clients. To attorneys unfamiliar with Islamic estate distribution, the fraction system for dividing an estate can be daunting. The problem can be compounded if Muslim clients do not fully understand the system that applies to their estate documents. Nonetheless, the Qur’an requires Muslims to have a will. The Qur’an, the holy book of Muslims, mandates of believers “when death approaches any of you and he is leaving behind much wealth, to make bequests in [favor] of his parents and [others] near of kin in accordance with what is fair.” The Prophet Muhammad, the most revered and final prophet in Islam, is reported to have said, “It is the duty of a Muslim who has something which is to be given as a bequest not to have it for two nights without having his will written down regarding it.” This article focuses on Islamic wills and provides an overview of the origins of Islamic estate planning, an explanation of the predetermined inheritor system, and a discussion of common issues practitioners will face when assisting Muslim-American clients in drafting Islamic estate documents.
Islamic estate planning stems from the Qur’an, which is the holy book of Muslims,5 and its interpretations in the hadith. The Qur’an is a 1400-year-old religious text that has been interpreted over time to be applied to the modern age. Before the advent of Islam, women generally could not inherit at all, even from their spouses, and sometimes these women were considered to be part of a man’s estate. Typically, only blood relatives and adopted sons were permitted to inherit. In a limited exception to this rule, two unrelated men could bequest inheritance to each other via a “contract of alliance.” Islam changed these concepts dramatically and introduced the idea that property ultimately belonged to God, and that people only possessed a certain level of control of the property at the time of their deaths.