The Path By The Water

The British legal system has decided to accept the inequality of women, at least for Islamic wills.
Under ground-breaking guidance, produced by The Law Society, High Street solicitors will be able to write Islamic wills that deny women an equal share of inheritances and exclude unbelievers altogether.
"High Street" is a British term roughly equivalent to the American "Main Street." What's being discussed here is not a centralized action, then, but the kind of thing that will flow naturally from small actors across the country.


Eric Blair said...

That's just some 'guidance' for lawyers, sort of 'best practices' kind of thing.

Don't know why'd they do that, since anybody with standing is going to challenge such a will based on other existing laws.

It will be amusing to watch the reaction of British feminist and gay activists.

Texan99 said...

We live in a community-property state and, in any case, have always merged even our separate property so that it became community. Property traditions that rely on a husband's good faith or diligence or skill in writing an appropriate will would make me very nervous on behalf of wives. Nevertheless, except for specific exceptions providing for mandatory protection of wives and offspring, people generally are free to leave their property to whom they wish.

The guidelines discussed in this article don't change the substantive law in that respect. Instead, they show people how to draft a will so that common words and phrases are not interpreted in a way contrary to their intent. When your intent varies from the usual practice, you have to be particularly explicit in describing your desired heirs and avoiding broad terms of art. If you want to exclude illegitimate children, for instance, or the issue of marriages you disapprove of, or grandchildren who survived your children, or apostate heirs, you can't use all-purpose traditional terms like "children" or "grandchildren" or "issue." These guidelines point out the words to use so that no one will be able to "re-interpret" your intent according to their own expectations.

In other words, if there's a legal custom here that disfavors women, I'd identify it as the normal practice of holding marital property in the husband's name, not in guidelines for achieving sharia-compliant wills. People are entitled to disinherit whom they wish (other than minors entitled to their support), as long as they rightfully owned the property to begin with.

Grim said...

My understanding is that these wills don't rely on the good faith of husbands. Rather, they mandate that wives inherit at a different (lower) rate.

The distinction would be between a law that said that a husband might leave all or only some of his property to his wife, but must leave at least enough to support her -- as you say, "specific exceptions providing for mandatory protection of wives and offspring" -- and one that sets an upper bound (while mandating a refusal to support bastard children).

That seems to me to be a reverse of the usual assumptions. All the same, I'm not necessarily opposed to the idea of granting exceptions to traditional religious law. I'm just interested to see which religions get those exceptions, and which ones are told to alter their views to conform to the states' preferences.

Cass said...

I was in school a while ago, but I learned that most states won't allow someone to disinherit their spouse (at least without consent).

Admittedly I only took one wills class, but I know Maryland is an elective share state (meaning even if the will states otherwise, the spouse can claim some percentage of whatever passes through probate). And major assets like houses are usually joint tenancies, so when one spouse dies, the other becomes the sole owner.

I think you can put things in trust so they don't go to probate. That's what my parents did, but to avoid taxes and legal nightmares, not so they can stiff each other...

...pun fully intended :p

In some states, both probate and non-probate property is subject to elective share laws.

Interestingly, Georgia is the only state I know of that allows spouses to completely disinherit each other. A handful of states apply community property laws, and the rest have some sort of elective share statute with the differences mostly consisting of "what does that share apply to".

I always find sharia law to be an interesting case for whether we really want all the religious freedom we say we do :p

Cass said...

OK, I looked it up and the Maryland spousal share is 1/3. Interesting stuff.

I had best be nice to the Spousal Unit.