Under Sharia law, Wills control 1/3 of a deceased’s estate. The rest is divided among family by various fractions. Depending who survives, a spouse might inherit one-half, one-fourth, or one-eighth; a parent one-third or one-sixth; and a child one-third or two-thirds. In general, males of the same class and degree inherit twice the share of females.
Between Sunni and Shia Islam, there are five major schools. Most allow the deceased to redistribute the 1/3 portion among the forced heirs, enabling the deceased to equalize distributions to daughters and wives. One school, the Maliki, reserves the 1/3 portion for charity, friends, or more remote relatives.
Online Islamic Wills
Model Islamic Wills are available online. Avoid them. They tend to incorporate Sharia law by reference (“I direct said executor to pay any ‘obligations to Allah’ (Huquq Allah) which are binding on me, such as unpaid Zakah, Kaffarat, or unperformed pilgrimage (Hajj).” And, “I give the remainder to my Muslim heirs through Islamic or lawful marriage.”). That’s fine in Iran or Pakistan, but an unforced error in Texas. Even if a Texas probate court will take notice of Sharia law (which is ever more doubtful), there’s no telling which version will be applied, and at what expense.
Drafting Texas Documents to Meet Islamic Goals
A better approach is to address Islamic goals with the language of the Texas Estates Code and the Internal Revenue Code. For example:
- Run the family tree by an Islamic inheritance calculator, e.g., http://inheritance.ilmsummit.org/projects/inheritance/home.aspx. In the simplest cases, leaving all to “Muslim heirs,” can become “1/6 to my mother, if she survives me; 1/8 to my wife, if she survives me; and the remainder to my children, with each son receiving twice the share of each daughter.”
- If obligatory charity has never been paid, leave 2.5% of the gross estate for federal estate tax purposes to a tax-exempt organization. Rather than gifts to “Islamic charities,” identify an organization by name. Search https://apps.irs.gov/app/eos/ for “Zakat” for ideas.
- Edit standard definitions to exclude non-Islamic heirs, e.g., adopted children.
Some Muslims may prefer “Islam lite.” They leave 1/6 to parents, 1/4 or 1/8 to the spouse, and the remainder in equal shares to the children, subject to lifetime tax-planned and asset-protected trusts. Parents’ expectations are met, but the children’s inheritance is gender neutral and protected from divorce.
To make wishes for an Islamic burial known, use this: https://bellaireprobate.com/wp-content/uploads/2018/12/Appointment-for-Disposition-of-Remains-Islamic.pdf.
To learn more, read Imani Jaafar (2016) “Practical Islamic Estate Planning: A Short Primer,” Mitchell Hamline Law Review: Vol. 42 : Iss. 3 , Article 4. Available at: http://open.mitchellhamline.edu/mhlr/vol42/iss3/4. The Islamic inheritance calculator mentioned above was cited in her article. For thoughts from a different school of Islam, visit www.al-islam.org.
For a comprehensive survey and forms, I like Shyla R. Buckner, 9 Drafting for Religious & Philosophical Preferences, in 23rd Annual Estate Planning and Probate Course (State Bar of Texas 2012). That article is behind a State Bar paywall.