This article is the first in a series highlighting important aspects to consider when drafting an Islamic will in the United States.

As stated in previous Justice 360 articles, it is imperative that every Muslim, whether young, old, married, unmarried, with children or without, has an Islamic will. The Holy Prophet made this clear in the following hadith: "It is not proper for a Muslim to pass two nights except that his/her last will and testament is near his/her pillow." - Bihar ul-Anwar Vol. 103 page 193.

However, having an Islamic Will that complies with not only Islamic law but state law can be quite complicated. The following article will seek to address one of the various conflicts between state and Islamic law - common law / community property states versus Islamic law.

Most states (other than the community property states listed below) use the common law system of property ownership. In these states, it is usually very easy to tell which spouse owns what assets. For example, if an individual's name is on the deed to property that person owns 100% of the property. On the other hand, if both spouses have their name on the deed, they each own half-interest in the property. Furthermore, if a couple owns property in "joint tenancy with right of survivorship" or "tenancy by the entirety," the property automatically belongs to the surviving spouse when one spouse dies - no matter what the deceased spouse's will states. Thus, the freedom to give away or leave the property in a will is dictated by who has ownership in the property.

If you live in a community property state (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) the rules are more complicated. Generally, in community property states, money earned by either spouse during marriage and all property acquired during marriage is considered community property - owned equally by husband and wife. At the death of one spouse, the half-interest of that deceased spouse goes to the surviving spouse.

As you can see by the discussion above, state inheritance laws are very complicated which makes drafting a compliant Islamic will very challenging. In Islamic law property ownership is very simple. The individual who purchases assets has 100% ownership in such assets, regardless if he/she is married or not. The individual also has the rights to distribute one third of those assets through his/her will, since after the death, the will in Islamic law applies to one third only, unlike both community property and common law states, in which the assets may go directly to the surviving spouse upon death. Thus, there is a clear conflict between Islamic and state laws regarding rights of inheritance.

As a result, when a married couple is drafting an Islamic will, they need to ensure they also have a signed agreement between the spouses outlining rights of ownership in their respective assets. Failure to do so may result in misapplication of Islamic law. The agreement needs to ensure that each of the parties separately retain all rights in the property he or she now owns as well as property and income acquired separately in the future. In addition, each of them shall have the unrestricted right to dispose of such separate property, free and clear of any claim that may be made by the other by reason of their marriage. Such an agreement will be legal and binding and trump conflicting state laws.

As you can see from this article, drafting a legally compliant Islamic will can be complicated as there are various conflicts between state law and Islamic law. If you need assistance drafting a compliant Islamic will please contact Justice 360 via email.

The author of this article can be reached via email at Justice360@muslimcongress.org. For more information about Justice360, visit http://www.muslimcongress.org/360.

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