Inheritance Loopholes! For Girls!

One of the topics that came up at a recent Muslim lawyers’ conference I recently attended was the way attorneys like myself handle the values that we have as Muslims and combine them with the laws of whatever jurisdiction we practice in.   A professor spoke, noting that we have been trashing much of what is in our Islamic tradition for some time, something he viewed as a good thing.  One example is the (false) claim that we as lawyers when we get a Muslim client, will try to avoid doing what the Quran says (4:11-14) when it comes to inheritance and instead, we lawyers will figure out how to make everything equal between sons and daughters.

A lawyer in a discussion on Islamic Inheritance then spoke of “loopholes” that allow for equal inheritance distribution.  Another lawyer, who did not approve the use of the term “loopholes,” probably on account of it being gross, nevertheless went on to describe ways to plan around the requirement, sort of (I will get to that). Some Muslim clients want this stuff. We do our best, but cannot help Muslims do something prohibited in Islam.

For many Muslims, including many lawyers, there is something offensive about a daughter getting ½ the inheritance of a son. I get that people think this, I suppose. I will try to explain why such people are wrong.  At the same time, there is something offensive when we are in a place where we try to turn “equal inheritance” as “Islamic” as if we are trying to sell an offshore tax shelter to some 1 percenter. This is a fine secular activity unless it is illegal, but when it comes to selling Islamic loopholes, it seems, like I said, gross.

Given, or left?

You never “give” inheritance to anyone. You leave an inheritance. Inheritance consists of your worldly possessions when you go to a place where you cannot take them with you. If you want to give away something, not as a sham, and not as a gift contemplating a quick death, but really give it away for something that is not otherwise prohibited, there is nothing in Islam that stops you. So, if you can pay for your daughter’s entire education at MIT, but cover only a year and a half of your son’s education at the local community college because that is all he can stand, you are not doing anything wrong.

You leave an inheritance to a world in which you will not be a part, to people who may or may not presently exist, whose then circumstances you have no idea. This is all knowledge of the future, the unseen. Trying to ask for fairness under these circumstances is like asking a judge to carefully weigh all the evidence after her own death.

Equal

I sometimes hear about how “backwards” Islam is because inheritance is unequal between sons and daughters. In the United States the principle that allows Muslims to plan based on our own faith tradition is “free alienation of property,” the notion that you can do what you want with your wealth. It is the principle that allows Muslims in the United States to plan based on our own values (people in other countries are not so fortunate). Indeed, in my extensive experience dealing with decedent’s estates, it is relatively common for non-Muslims to include unequal distribution for their children, which is done for a variety of reasons, some good, some mean-spirited, all of which is merely a tribute to the vanity of a dead person. Deciding on your own who amongst your loved ones is more deserving after you die can only be that.

But then we have “equal” as a principle some Muslims cling to. They should not. Equal is not the same as equitable. Indeed, those two things may be far from each other. Equity relies on facts and circumstances, while equality is mechanical, unthinking, harsh. Total equality in all things is lunacy. Why does it make sense that a daughter who has a learning disability and no capacity to earn gets the same as the multi-millionaire son with the private plane?  Of course, someone who believes in “equal” would typically not do that, they would likely give more to the child with the learning disability. Equality is not really a legal, ethical or moral principle at all, and in general, there is no right for children to inheritance in the United States (not at all). Equality is a false moral talisman for those offended by Islam’s prescription for inheritance because it upsets them so.

Equality is a false religion.

But Islam has fixed shares

What about that parent with the multi-millionaire son and the daughter with the severe learning disability? How is it fair she gets half what her brother gets? Is the criticism of equality being mechanical and harsh also not true for Islam, which has fixed shares of inheritance?

The criticism the Islamic system is also “mechanical” in the same way equal distribution would be partially fair only if the Islamic system of inheritance were viewed as shares in isolation and judged by the same standards as secular inheritance. I say “partially” only because if you want to use inheritance to influence the world you live in today, you are doing it wrong. A parent with a daughter who has a learning disability will do what she can to help her daughter today, and that may include a gift to a special needs trust to make sure whatever assets she has does not prevent eligibility for public benefits.

Promising to help someone as soon as you die may come off as insincere.

Merely comparing the Islamic system to the secular gospel of absolute equality and placing a numerical value on each to divine “fairness” is foolish. The first thing about wealth is that if you are a Muslim, it is not your own.  Everything in the heavens and earth and all that it contains belongs to Allah.  What you have has been entrusted to you.  If you misspend your wealth on things that are prohibited, or if you hoard it failing to pay zakat, you are violating this trust.  Virtually every Muslim implicitly knows this.

Of course, someone who makes up a will that distributes inheritance based on his own vanity (or does nothing) instead of the command of Allah is similarly violating that trust.

The terms of the trust placed in us for our own wealth is somewhat different for men and women. Men and women have the same responsibilities when it comes to Zakat and staying away from the prohibited. However, men have a responsibility to take care of the women in their families, while women do not have a similar responsibility. This support responsibility is not limited to inheritance, but all a man’s wealth.

The value of an asset with restrictions is going to always be less than the same asset with no restrictions. Say, for example, the value of land that gives someone else oil drilling rights vs the value of a home that includes drilling rights. The share of inheritance for boys and the share for girls is intrinsically not the same thing. Boys get more, but they must do more.

But these days men are so mean

Many who object to the non-equal shares of inheritance point out that in the old days, men were honorable. Families, tribes, and entire villages looked after women and their dignity and made sure that a man’s honor in the community was tied to how he treated women in his own family. We are told what passes for men now are these selfish overgrown children would not mind seeing their own sister or daughter starve. They cannot be relied on by women for anything. Given that society has changed to one in which half-men get twice the inheritance of full women, perhaps we should also consider just making the shares of inheritance equal?

I have seen many variations of this romanticized past contrasted with a dystopian present to justify an alternative to Islamic inheritance so that it can match a phony secular ideal. There are many cultures in our society and not just one. Many men will do everything they can to look after women in their family. There are many men who look at women in their own family as the enemy. The difference is often Tarbiyah, or Islamic teachings, not some evolutionary truth about man-children.

Instead of assuming the collapse of society, particularly the XY portion of it, to justify presuming to countermand of the command of Allah, why not focus on building a better society, starting with your own family? If you are still concerned, develop an Estate Plan with an enforcement mechanism like what existed in Islamic societies. This can be done if you want it.

But still, you want loopholes…

At this point, there will be someone who would say, “ok, I get that this is an Islamic requirement and I respect that, but what is the out?”   You may not be happy with the answers. The first one is that since inheritance is the right of the person who receives the inheritance, it is not the right of the deceased person to decide who in the family gets how much. So, sons and perhaps other beneficiaries, such as parents, can compensate the daughter from their own inheritance. If you are the person doing your own estate planning, avoid stage managing this, since it could cause fitna within the family. This is not a loophole since you don’t actually know if this will happen and no control over it, even if you let it be known this is your wish without mandating it.

The second is to just give a gift during one’s lifetime. Say you just give a million dollars to your daughter now, a big house, or maybe a special needs trust for a special needs child. You give it away, the money (or other property) is gone. As described above, you cannot give sham gifts— giving with the intent of denying rights or giving away too much during your “final sickness”. You may continue to live for many years without this asset, which could then pass to your daughter’s heirs. During this time, your wealth may increase dramatically, or you may become impoverished. You have no idea. Inheritance is what you leave behind, what you cannot take it with you, while a gift is what you give from what you can use and benefit from.

The third way, is reserved only for the Shia, since it involves giving a wasiyyah of up to ⅓ of your estate to your daughter, “equalizing” the inheritance. This is not available in Sunni schools of thought since there is a hadith that an heir cannot be the beneficiary of the wasiyyah. The shares in the Quran cannot be manipulated and reshaped to your own desires.

This is beneficial

What often gets lost in this discussion is that the Islamic system of inheritance is fundamental to our society.  It helps eliminate fitna at a difficult time for families. When you know a parent has planned based on the command of Allah, there is nobody to be angry with. You cannot blame vanity, manipulation of the elderly, favoritism, or anything else. The parent was a believing Muslim and followed the Quran, up to the point that he or she died. Like the death a loved one itself that precipitates this, you must accept that this is the judgment of Allah. If you are ever blessed with an inheritance from a loved one, understand that, like the rest of your wealth, this is a trust.  If you are ever blessed with wealth at all it is also vital to understand that what you have is a trust. Don’t play games with it.

If you want to learn more about Islamic Inheritance and Estate Planning, I have put together Islamic Inheritance Resource Guide.