Question

Assalamoalaikum
Since my husband is not in favor for me to do any job during his lifetime and even after his death, he wants to make a WILL. My husband wants if anything happens to him than all his assets goes to me so that I can be financially stable to raise a special need child and to take care of myself. He is ready to give all to me during his lifetime too. Please advice us that is it allowed in Islam and how to do it in a way as not to become a sinner.
Also, if I die before my husband than I want that all my assets goes to my husband and all jewelry is divided equally between both sons.
The reason me and my husband wants to do this is because of our special needs child and the person who has to look after him ( either me or my husband )
May Allah accepts your efforts and give rewards in both of the worlds…

Answer

When a person passes away their estate is divided according to shari’ah. The deceased has the right to give away up to 1/3 of their estate wherever they wish, however, they cannot stipulate that it be given to someone who is already going to inherit. As for the remaining 2/3 this will be distributed amongst the inheritors based on shares stipulated by shari’ah. These shares are determined and must be followed. Hence, it will not be permissible for you to state that when you pass away all your wealth goes to your husband or vice versa.

If in your life time you were to gift all your wealth to your husband or he was to gift you all of his wealth, this would be permissible. The recipient must take ownership and possession of the wealth before the donor passes away, as at the time of death any items still within their ownership will be distributed according to the rules of inheritance.

The problem, as you have mentioned, is that you do not know who is going to pass away first and therefore it is not guaranteed that your dependent son will be financially secure. One possible solution is to gift some wealth to your dependent son. Your son will then own this wealth hence it cannot be taken by anyone else. The guardian will then be allowed to use the son’s wealth to spend on the son, as they are dependent and cannot make decisions for themselves. This will ensure that their is sufficient wealth left for this son and that the wealth is spent on them. It also will not matter which parent passes away first as the surviving parent will have access to this wealth as the guardian. This can also be done in the form of creating a trust fund of some sort where the parents are the trustees and the son is the beneficiary.

As for providing financial security for the wife, the husband in his lifetime can gift her half of his assets. All his assets will then be co-owned between the husband and wife at a percentage share of 50% each. This would then mean that if the husband passes away first, the wife will already own 50% of what was left behind as that was gifted to her, and will then also inherit from the remaining 50% which was owned by the husband. This will provide some level of financial security. The same can also be done vice versa.

Answered by:
Ifta Research Fellow

Checked & Approved by:
Mufti Abdul Rahman Mangera
Mufti Zubair Patel