Answered by Shaykh Muhammad ibn Adam al-Kawthari
Please advise how to write a Will for an older couple who have cash saved for retirement, and their children are well settled? They would want the other to have all their money when one dies. Do the Inheritance Laws of Shariah apply in this case? Or only apply when both of them or the latter dies? They want the other spouse not to be dependent on the kids, when one of them dies.
In the name of Allah, Most Compassionate, Most Merciful,
It should always be remembered that making a Will does not mean dividing and calculating one’s wealth and estate amongst the various inheritors. Preparing a Will merely means to stipulate that upon death, the executors will distribute the wealth according to the guidelines of Shariah.
The reason behind this is that the inheritance portions have been determined and allotted by Allah Most High in the Qur’an. As such, one cannot determine in one’s lifetime as to how much percentage of one’s wealth will be exactly allocated to each individual, for one is unaware who will be alive at the time of one’s death. Even the death of one person can make a big difference in the division and distribution of the estate.
According to the rules of inheritance, the estate and wealth of the deceased will be distributed amongst his/her spouse, children and parents (if they are alive). It will not be permitted to give all the leftover wealth to the surviving spouse without proper and full consent of all the remaining inheritors. The children of the deceased are also entitled to their portion of inheritance; hence it will not be permitted for the surviving spouse to inherit all the wealth.
What the couple can do is that they may have joint ownership of everything they own. The house they reside in, other properties and all the cash should be considered in the joint ownership of both the spouses. Then, in the event of one’s death, the surviving spouse will retain his/her ownership of half of the total wealth, and also inherit his/her share of the remaining half along with the other inheritors. In this way, the surviving spouse will be able to have a larger share after the spouse’s death
It should also be remembered that the children (and anyone else who qualifies to inherit) may relinquish their right, and consent to their parent taking ownership of all the leftover wealth. However, this is something that is purely optional on their part; hence they should not be forced into accepting this. Each and every individual who is entitled to his/her share of inheritance must consent willingly to relinquish his/her right. At times, people are forced into giving up their right of inheritance, which is clearly wrong and sinful.
And Allah knows best
Muhammad ibn Adam al-Kawthari