Allah (thus) directs you as regards your Children´s (Inheritance): to the male, a portion equal to that of two females: if only daughters, two or more, their share is two-thirds of the inheritance; if only one, her share is a half. For parents, a sixth share of the inheritance to each, if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased Left brothers (or sisters) the mother has a sixth. (The distribution in all cases (´s) after the payment of legacies and debts. Ye know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah; and Allah is All-knowing, All-wise.
In what your wives leave, your share is a half, if they leave no child; but if they leave a child, ye get a fourth; after payment of legacies and debts. In what ye leave, their share is a fourth, if ye leave no child; but if ye leave a child, they get an eighth; after payment of legacies and debts. If the man or woman whose inheritance is in question, has left neither ascendants nor descendants, but has left a brother or a sister, each one of the two gets a sixth; but if more than two, they share in a third; after payment of legacies and debts; so that no loss is caused (to any one). Thus is it ordained by Allah; and Allah is All-knowing, Most Forbearing.
Qur’an An-Nisa [4:11-12] Trans. Yusuf Ali.
Islamic inheritance laws are extremely complex and detailed. In two short verses, the Qur’an prescribes an inheritance plan that is the source of countless literature, debates and discussion. Needless to say, this distribution scheme is vastly different from the way a person’s wealth is distributed in Pennsylvania or New Jersey, if that individual dies without a will (“intestate”) in those states.
There are a few points in which the inheritance laws of New Jersey and Pennsylvania and the Islamic rules are in agreement. For example, both sets of rules require that the debts of the deceased person (the “decedent”), be paid and costs of administration of the estate be paid from the decedent’s estate, before any distributions may be made to any heirs. Further, the “Slayer’s Act,” which provides that an individual who caused the death of the decedent cannot benefit from his or her death, is also applicable in the context of the Islamic inheritance plan. This is, however, where similarities mostly end.
The treatment of the surviving spouse is an area where the two regimes are completely incompatible. Surah An-Nisa prescribes that a surviving wife receives 1/8th of her deceased husband’s estate if she has children or 1/4th if she does not have children. A surviving husband receives 1/4th of his deceased wife’s estate if he has children or 1/2 if he does not have children. In contrast, Pennsylvania law provides that the surviving spouse, regardless of sex, receives the first $30,000 of the deceased spouse’s estate plus half the balance of the estate, if the deceased does not have any children or if all of the deceased spouse’s children are also children of the surviving spouse. In New Jersey, the surviving spouse receives the entire estate of the deceased spouse if all the children of the deceased spouse are also children of the surviving spouse, and there are no other children of either party.
In addition, both New Jersey and Pennsylvania have laws that prevent a spouse from disinheriting their surviving spouse by providing that the surviving spouse may elect to receive a statutory amount, regardless of what the decedent’s will says. This is called the “spousal right of election”. In Pennsylvania and New Jersey, this elective share consists of a third of the deceased spouse’s estate, including certain property that the decedent had conveyed in his lifetime. This election will trump any other provision provided in the will, absent a prenuptial agreement disclaiming the spousal elective share. Thus, Pennsylvania and New Jersey resident Muslims should be aware when preparing their wills that the surviving spouse may choose to act contrary to the will and the decedent’s religious choice, and collect a greater share of the estate.
Further, most joint property owned by married couples are held as joint tenants with right of survivorship, which means the surviving owner automatically becomes the owner of 100% of the property upon the death of the other owner. Thus, if a Muslim couple owns all their property (e.g. car, bank accounts, house etc.) as joint tenants with right of right of survivorship or as tenants by the entireties, the surviving spouse would receive all of the deceased spouse’s share of that property, regardless of any provision in the will.
There are other important differences to consider. The Qur’an provides a general rule that an individual’s male descendants and female descendants will inherit in a 2:1 ratio. In contrast, state laws of Pennsylvania and New Jersey are gender neutral. Another difference is whether a person can inherit “through” a deceased person. In Pennsylvania and New Jersey, if a deceased individual were to inherit from another person if he or she were alive, then the surviving children of the deceased person can “step into the shoes” of their deceased parent and receive the property that the deceased individual would have inherited if he or she had been alive. For example, if a person dies leaving children before his or her parents died, the surviving children would be able would be able to receive their deceased parent’s share from their grandparent’s estate. This result is not permitted in Hadith, where the surviving grandchildren would no longer be able to receive from their grandparent’s estate once the parent predeceased the grandparent. (Sahih Al-Bukhari [Vol. 4, Book 51, Num. 10]).
A very important factor to consider while planning any estate is the applicable death taxes. Both Pennsylvania and New Jersey do not have any taxes on transfer to spouses on death, however, Pennsylvania imposes a 4.5% inheritance tax to any transfers children or parents. Transfers to siblings are taxed at 12% in Pennsylvania and as high as 16% in New Jersey. In addition, New Jersey imposes an estate tax as high as 37% on estates greater than $675,000.00. To avoid paying such high taxes, many New Jersey residents plan their estates such that they gift away certain assets before their death. However according to Hadith, distributions to charity or persons not specifically provided for in the above verses are limited to no more than 1/3rd of the decedent’s estate (Sahih Al-Bukhari [Vol. 4 Book 51, Num. 5-7]). Thus New Jersey resident Muslims may find a plan to reduce the size of their taxable estate by gifting away assets at odds with the 1/3rd limit on gifts.
Surah An-Nisa also provides rules for distribution of the estate to parents and siblings, however; these rules are extremely complex and vary greatly depending on the number and type of surviving relatives. This article is not intended to be a comprehensive analysis of Islamic inheritance rules, rather to highlight some of the areas in which the state laws of Pennsylvania and New Jersey diverge from the Islamic rules, and issues that Pennsylvania and New Jersey resident Muslims should consider when creating their estate plans. Such individuals will have to consider their religious and spiritual needs, as well as the practical issues such as elective spousal share, joint property ownership, and taxes when planning their wills.
Narrated Abdullah bin Umar: Allah’s Apostle said, “It is not permissible for any Muslim who has something to will to stay for two nights without having his last will and testament written and kept ready with him.”
Sahih Al-Bukhari [Vol. 4, Book 51, Num. 1] Trans. M. Muhsin Khan.
It is the holy month of Ramadan! This is a special time for Muslims everywhere. Now is the perfect time to prepare your estate plans.
The estate planning attorneys at Maloles Law, LLC can assist you with putting an estate plan in place for Muslim families, with understanding and sensitivity. The lawyers at Maloles Law, LLC provide estate planning services for Muslim families in the following Pennsylvania Counties: Philadelphia County, Bucks County, Chester County, Lehigh County, Northampton County, Carbon County, Pike County, Wayne County, Monroe County and Lackawanna County. If you are local, please feel free to contact our Estate attorney in Delaware County and our Estate attorney Montgomery County. Our estate lawyers in NJ also offer estate planning advice to New Jersey Muslim Families in the following counties: Burlington County, Camden County, Gloucester County, Atlantic County, Ocean County, and Cape May County. For more information, contact the estate attorneys at Maloles Law today at 215.600.1362 for your no-obligation initial consultation, or visit our website at www.maloleslaw.com.
DISCLAIMER: This article is not intended to constitute legal advice. Please seek the assistance of a qualified legal professional. This article is also not intended to be religious advice. For an opinion on a religious matter, please seek the advice of a qualified religious scholar.