Saturday, April 30, 2011

Discussion on sharia law and inheritance in the US

This article is a fascinating dialogue on sharia law and the application under American civil law regarding the inheritance differences between sons and daughters. 

The will in dispute reads, in part "...[The] rest of the pension, if any left, should be divided according to Islamic Laws and Sharia...."  Now you can see where the disagreements start, and how difficult and potentially dangerous it is for a court to try and dissect this in a way which will satisfy US law and the dead guys will.

This is one of those precedent moments which will set a tone for future litigation outcomes involving in heritance among Muslims.  The most interesting thing in this article are the comments.  This is a site run by, and for lawyers, and their views on law as applied to sharia are very informative.  Read them if you have a few extra minutes.

From The Volokh Comspiracy April 29 by Eugene Volokh

Will Calls for Distribution “According to Islamic Laws and Sharia”; Pennsylvania Court Gives Twice as Much to Each Son as to Each Daughter 

That seems to be what happened in Alkhafaji v. TIAA-CREF Individual and Instit. Services LLC, 2010 WL 1435056 (Pa. Ct. Com. Pl. Jan. 14, 2010), which is now on appeal. I’m posting about this now because the briefs were just posted on Westlaw, and confirm the details of the will, as well as giving some extra perspective on the disputes related to what Sharia law provides in such situations.

Prof. Abbass Alkhafaji died, and left a will that apparently said, in relevant part,
(4) About my pension, the beneficiaries are all my biological kids and my current wife, ... after reducing all costs associated with the house.... [The] rest of the pension, if any left, should be divided according to Islamic Laws and Sharia....
(9) In case I have additional monetary benefits from my job, such as life insurance, 401K, 403B or any other retirement funds that I am not aware of, Allah as my witness, They should be divided, after costs associated with the payment of those funds according to Islamic Laws and “Sharia.”
The trial court entered an order that concluded with, “(1) TIAA-CREF Individual and Institutional Services LLC, shall make distribution of the pension accounts of the TIAA-CREF certificates ... to the decedent’s surviving spouse, ... in accordance with decedent’s last will and testament dated July 17, 2007, and to his biological children, ... in accordance of the law of Sharia, mainly [sic], one-eighth share to the surviving spouse, ... and thereafter, the remaining balance to be divided, two shares each to the six male children, and one share each to the [two] female children.”

Now if Prof. Alkhafaji had specified in his will that he was leaving a 1/8 share to his wife, and then 1/8 to each of his sons and 1/16 to each of his daughters, that would be fine, regardless of whether his motivation was religious or secular. (This is subject to any state law that might give his wife the power to get some minimum prescribed share, but apparently this was not argued in this case, perhaps because part of the argument — which I won’t get into here — was that Prof. Alkhafaji had left his wife certain assets for the duration of her life, with only the remainder after her death to be split between the children.) People are free to discriminate based on sex, religion, race, and so on in their wills, including in their gifts to their children.

But apparently the will had no such specific provision; rather, it called for distribution under religious law. This raises two questions:

(1) May a court interpret a will — or a contract, deed, trust instrument, or what have you — that calls for the application of religious law (whether Islamic law, Jewish law, canon law, or any other religious law)? Or does the Establishment Clause preclude courts from deciding what, say, Islamic law actually requires, at least if there’s a controversy between the parties about what the “true” interpretation of the religious law should be? Here, one side argues that under Islamic law, the contested provisions of the will are invalid, and that the court erred in relying on the widow’s interpretation of Sharia law; to quote the appellee’s brief, 2011 WL 1573386:
The Court’s determination that the pension should be distributed by giving the widow one eighth of the estate, with the remainder going to the children with two parts for each male and one part for each female, was not only a violation of the terms of the MDA, but also an incorrect interpretation of Shariah law. Had the trial court consulted an expert or referenced judicial texts rather than an interested non-expert, it would have noted that the will offered by a person who is in the illness of death is invalid under Shariah law. The illness of death is defined as the illness which would most likely lead to death. In other words, had the court correctly interpreted Shariah law, it would have found paragraph four of Decedent’s most recent will to be invalid. Because Shariah law is codified in judicial texts which were referenced at the trial court level, and the trial court failed to consult those texts, it committed an error of law when it incorrectly interpreted Shariah law.
(2) May a court apply a foreign or religious legal rule that requires discrimination based on sex, religion, race, and the like, when it is doing so in the course of interpreting a will, contract, etc., on the theory that the court is simply effectuating the author’s discriminatory preferences rather than itself engaging in constitutionally suspect discrimination?

There is much more, read it all

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