Why Waiving the Elective Share Is Essential for an Islamic Will.

September 16, 2025

Why Waiving the Elective Share Is Essential for an Islamic Will

When Muslims in the United States plan their estates, they often focus on writing an Islamic will that reflects the Qur’anic rules of inheritance. But there is a hidden obstacle in many state laws that can block those intentions: the elective share. Unless it is waived, the elective share can override an Islamic will, making it impossible to distribute wealth fully in accordance with Islamic law.

1. What Is the Elective Share?

In most U.S. states, the law gives a surviving husband or wife the right to claim a portion of their spouse’s estate—no matter what the will says. This is called the elective share (sometimes called the “statutory share” or “forced share”).

  • Purpose: It was designed to prevent someone from disinheriting their spouse completely.
  • Amount: Depending on the state, the share is often between one-third and one-half of the estate. If the elective share is claimed under state law, it often grants the spouse more than what the Qur’an permits. This undermines the religious intent of the deceased and disrupts the rightful shares of the other heirs.

2. Why It Conflicts with Islamic Wills

Islamic inheritance law is not flexible: it is laid out in the Qur’an itself (Surah al-Nisāʾ, 4:11–12). The shares are fixed and divinely ordained. For example:

  • A wife inherits ¼ of her husband’s estate if there are no children, and ⅛ if there are children.
  • A husband inherits ½ of his wife’s estate if there are no children, and ¼ if there are children.

If the elective share is claimed under state law, it often grants the spouse more than what the Qur’an permits. This undermines the religious intent of the deceased and disrupts the rightful shares of the other heirs.

3. Waiving the Elective Share

The way to reconcile state law with Islamic law is by waiving the elective share. Spouses can do this by entering into a legally binding agreement:

  • Prenuptial agreement (prenup): Signed before marriage.
  • Postnuptial agreement (postnup): Signed after marriage.

By signing such an agreement, both spouses voluntarily give up their right to claim the elective share and agree to accept the inheritance outlined in the will. Courts will generally uphold these waivers if they are:

  • In writing,
  • Entered into voluntarily and with full knowledge, and
  • Not unconscionable when signed.

4. How Waivers Protect an Islamic Will

When the elective share is waived:

  • The Islamic will can be executed as written.
  • Each heir receives exactly the portion prescribed in the Qur’an.
  • The executor and the court have no conflict between state law and religious obligations.

Without the waiver, the surviving spouse may be pressured—by law or by family dynamics—to take more than their Qur’anic share, leaving the Islamic will only partially enforceable.

5. What If I Forget to Make a Will?

A common concern is: “If I waive my elective share, does that mean I could end up with nothing if my spouse forgets to make a will?” The answer is no.

Waiving the elective share simply means you are agreeing not to override an Islamic will with the larger share that state law would otherwise give you. It does not erase your rights altogether. Two important points provide reassurance:

  • If your spouse writes an Islamic will: You still inherit your Qur’anic share — for example, one-quarter or one-eighth of the estate, depending on whether there are children. That portion is guaranteed by the Islamic will and protected by law.

  • If your spouse dies without a will: State intestacy laws apply. These laws generally give the surviving spouse a significant portion of the estate, sometimes even the majority. While that distribution won’t perfectly match Islamic inheritance, it ensures you will not be left with nothing.

In other words, the waiver does not strip you of all inheritance rights. It simply ensures that, when there is a will drafted according to Islamic principles, the will can be honored without conflict.

Conclusion

For Muslims in the U.S., writing an Islamic will is only half the task. The other half is ensuring that the elective share does not override it. By signing a prenup or postnup that waives this right, spouses protect their estate plans and guarantee that their wealth is distributed exactly as God commands.

This simple step ensures that your estate plan honors both the law of the land and the law of Allah, giving you peace of mind that your legacy will be preserved as you intended.