Those who claim Islam is anti-female point to the alleged injustice of its rules of inheritance. The Qur’an commands parents to give their daughters half the amount of inheritance their sons receive (Qur’an 4:11). Does that not seem unfair in 21st century America, with all its notions of equality? As an American estate planning attorney, I can assure the reader that neither this mandate nor Islamic inheritance rules in general are outdated or unjust. Indeed, these rules are more relevant and fair than the system of inheritance that exists in America today.
Islam has no general rule that says women get half of what men receive. There are instances where women can inherit as much or more than men, depending on the specific relationship, but it is always true that Muslim daughters receive less than Muslim sons, and the reasons for this have been laid out by Islamic jurists and scholars. These rules are not anachronistic, outmoded or somehow trumped by modernity or changes in gender roles.
The U.S. system of inheritance is based on “free alienation of property,” or the notion that one can do with her wealth and property as she wishes. In fact, people frequently divide up their property unevenly or leave it all to charity, to the government or to members of the animal kingdom. This being said, in the United States, a married woman almost always leaves her property to her husband upon death, either because the couple jointly owned the property or because default rules dictate that her property now belongs to her spouse or because she simply wrote a living trust or will that transfers ownership to her husband. If her husband remarries, upon his death you can expect his new wife to get everything.
While doing whatever you choose with your property appeals to the American notion of freedom–—indeed, it is this system that allows Muslims, as well as other religious communities, to distribute our wealth according to our faith traditions–it is not how Muslims view property. Most Americans consider their property just that—theirs—but Muslims believe God has entrusted us with worldly possessions and when we die, we must hand off this wealth according to His will. “Everything in the heavens and the Earth and all that it contains belongs to Allah,” (Qur’an 31:26). As trustees of what truly belongs to God, we have some say in how we divide the property, but only within the parameters laid out in by Islamic rules of inheritance.
The inheritance guidelines delineated in the Qur’an rest on two core ideas. First, all of our worldly assets belong to God and and have been merely entrusted to us. Second, God has given a person’s family, both men and women, rights over these assets once the person dies. This notion of only the person distributing the property having the right to divide it as he or she wishes does not exist in Islam. In other words, if you are a Muslim, who you think should or not not receive inheritance is irrelevant. God has granted heirs rights to inheritance that trump the rights of the deceased to do as they please.
There is a common misconception that sons and daughters have the the same right to inheritance in the United States. This is simply untrue since the concept of having a “right to inheritance” for children does not exist in the United States (see footnote). While Islam lays out the rights of male and female heirs, American law begins with the absence of heirs by right; the parents can choose to give all their assets to their son, leaving nothing to the daughter if they wish. Leaving nothing to one or more children is common practice in the United States. A Muslim daughter, on the other hand, must receive at least half of what her biological brother inherits.
So Islam has rights to inheritance where American law does not. But why are those rights unequal? It would be foolish to examine the disparity in inheritance between a son and a daughter without evaluating other rules in the Qur’an. The Qur’an obligates men to provide financial support to their families (Qur’an 4:5). The support would come from all resources, including those obtained through inheritance from the husband’s own family. There is no comparable responsibility placed on women. The Qur’an does not obligate women to spend their inheritance on their husbands or children. In fact, women are not required to financially provide for their families in any way, although many choose to.
Mahr, the contractual gift given to a wife upon marriage in Islam, is another property right exclusive to women. Mahr is a mandatory part of marriage in Islam and the Qur’an even has a reference to mahr potentially being a “treasure” (Qur’an 4:20). Few Muslim Americans seriously pay attention to the contents of the marriage contract and the mahr at all. At the time of the drafting of the marriage contract, it’s important for a woman (and her guardian) to consider financial security for the bride regardless of the life or death of her relatives. Mahr, if done correctly, provides security; inheritance does not.
Furthermore, Islamic rules of inheritance only apply to assets a person did not distribute during his or her lifetime; they do not regulate the gifts a person can give while alive, so long as a person does not give these gifts out of spite and with the intention to deprive certain Islamic heirs by favoring others or give them during a final sickness. So giving your daughter, or any female relatives for that matter, a generous gift because you worry about her financial security and welfare is perfectly acceptable, indeed laudable. It is important to note that Islam defines the gift as an asset that is handed over here and now, not something written in a living trust or will that changes hands when a person passes away and his or her will goes into effect (if the gift is large enough, there may be a U.S. gift tax so you should consult your tax advisor).
Muslims view inheritance as a transfer of wealth from one transient trustee to another. It is not a device to prove men’s superiority over women or demonstrate the value of one relative over another. Islamic Inheritance is a uniform system mandated by God that removes a person’s biases and prejudices out of the equation in the interests of justice. It is fairly easy to abide by Islamic rules of inheritance while living in America, and in fact it is a Muslim’s religious obligation to do so.
(Photo Credit: Glikò)
Ahmed Shaikh is an Attorney in private practice in Southern California.