For many Americans past and present, freedom to worship and follow their religious tradition drove their decisions to immigrate to America. Our country’s diversity, including its religious diversity, is its strength. It also means it is a place where “one size fits all” seldom works.
The United States’ constitutional guarantee of religious freedom has shaped its society, resulting in Americans representing a variety of faiths. According to the Pew Research Center, 77% of Americans identified as religious in a 2015 survey (the most recent year of data available). Not all of these individuals will find their faith central to their estate plans, but many will.
Religious individuals deserve attorneys and advisers who are knowledgeable about the ways that their particular religion and traditions can shape their expectations and needs when it comes to planning for the end of life and beyond. These professionals should also be attentive listeners who understand that religions aren’t monoliths. Two members of the same faith community may disagree over a particular issue or weigh its importance differently.
If your religious tradition requires a particular approach to inheritance, end-of-life plans or charitable giving, the tools of estate planning can help you to secure those priorities. But even for individuals who don’t face particular requirements, estate planning is often about transmitting values as well as wealth. This may take the form of leaving a bequest to your place of worship or an associated religious organization. It may just as easily involve steps to ensure your children and grandchildren understand the profound importance you place on faith.
This article will touch on several examples of the ways faith can shape estate planning, though of course it is not comprehensive. Instead, it is meant to help you to think through the ways you may want to incorporate your religious beliefs in the planning process.
End-Of-Life Issues
While many people think of “estate planning” as purely the disposition of assets and payment of obligations after death, a comprehensive estate plan also covers potential situations in which the planner is still living but cannot make his or her wishes known. Issues related to incapacity or end-of-life care can be especially fraught for those whose religious beliefs shape what lifesaving measures they do or do not wish to accept.
The question of when, if ever, it is ethical to withdraw life support is one that divides people within faiths as well as between them. While none of this country’s most widely practiced religions currently condones physician-assisted suicide, some view withdrawing life-sustaining measures the same way, while others draw a distinction. In many cases, the critical issue is the definition of death: Does death mean the cessation of brain function? Is it the cessation of all bodily functions? Decades or centuries ago, this distinction may have been purely philosophical, but advances in medical technology have made it a difficult, practical question for many.
As an example, Orthodox Judaism generally holds that adherents must use all available methods to sustain life. Withholding nutrition and hydration is not allowed, regardless of absence of brain function. Conservative Judaism includes a split of opinion as to whether an individual or their family is obligated to extend life without hope for recovery, and Reform Judaism generally allows members to choose whether to maintain life-sustaining treatments. Christian sects and denominations, too, encompass a wide variety of views on what care must be administered during the end-of-life stage.
Whether your religion holds a formal position or merely shapes your individual thinking on the issue, the best way to ensure your loved ones know and follow your wishes is to lay them out in a formal document. A living will allows you to specify which medical procedures and life-sustaining treatments you do or do not want. You may also want to designate someone as your health care agent by granting them medical power of attorney. This person should be someone you trust implicitly; you may want them to share, or at a minimum intimately understand, any beliefs central to your wishes.
Another area where religion can profoundly shape plans is the disposition of remains. Cremation is prohibited by Islam, Judaism (though some Jewish sects have come to accept it more recently), and many Christian Orthodox churches. The Roman Catholic Church allows cremation but generally prefers burial, and it does not allow adherents to scatter cremated remains or to keep them at home. Hinduism, on the other hand, mandates cremation.
For those who elect burial, religious obligations may shape decisions further. Jewish law directs that burial should occur within 24 hours. An exception exists for deaths that occur just prior to the Sabbath or other religious holidays, allowing the burial to wait until after the holiday. Corpses are not embalmed, and generally not viewed by loved ones. Similarly, Muslim tradition dictates that burial must occur before the next sundown following a death, meaning embalming and viewing are not included in the process. Regardless of their particular faith, religious individuals who opt for burial may wish to be buried in an appropriately affiliated cemetery.
Organ donation is a subset of disposal of remains that can carry strong emotional resonance. Most, though not all, religions widely practiced in the United States permit or even encourage their members to donate if they wish to do so. However, some individuals may wish to consult clergy or another religious authority before making their final decision.
It is wise to specifically lay out any wishes regarding organ donation, cremation or burial in a legal document to guide your loved ones. You may create Memorial Instructions and Disposition of Remains documents to ensure clarity. You should not include these instructions in your will, as the will is often not found or read until after the deceased has been buried or cremated.
Inheritance
The division of assets is not the only question estate planning seeks to resolve, but it is among the process’s principal goals.
Most Christian denominations offer little firm guidance on the issue of inheritance, leaving many Christians to make their choices independently. However, some Christians may feel it important to give a final tithe, or 10%, of their estate’s assets to a church or to other faith-based charitable causes. Some may wish to consider a charitable remainder trust, which can provide some amount of assets to heirs and direct the rest to a designated charity. The specifics will depend on the individual’s situation.
Some individuals may find a trust useful for specific goals tied to their family’s religious observance, too. For example, many young adults in the Church of Jesus Christ of Latter-day Saints pursue mission work full time for two years (for men) or 18 months (for women). Parents or grandparents may wish to set aside assets specifically to support younger children’s future mission work.
Jewish and Muslim individuals may, depending on their particular observance, follow stricter rules governing their choices for bequests. Halacha, the collective body of Jewish religious laws, lays out an order for inheritance, though separate movements may interpret related issues differently. In the strictest sense, halachic inheritance dictates that if the deceased has a husband, he inherits the entire estate; if not, any sons split the estate between them. Daughters are ranked next, then the decedent’s father, and so on, through a variety of relations.
One place where halachic inheritance strikingly diverges from most secular probate laws in the United States is the omission of the decedent’s wife. Instead of inheriting directly, the widow is entitled to receive a fixed amount determined by prenuptial agreement or to be supported by the estate until she remarries. One modern interpretation suggests that a surviving wife is entitled to a substantial claim against her deceased husband’s assets without directly owning them. It is also worth noting that under halachic inheritance, adopted children cannot inherit from their adoptive parents.
Given these complications, a Jewish individual who dies intestate – that is, without a legally binding will – is likely to violate halacha by default, since state probate rules do not match halachic requirements. A will is always essential, but in this case, its absence can have religious ramifications. A proper estate plan may also allow Jewish individuals to leave assets in a manner different from halachic requirements without violating the law. While the details are beyond the scope of this article, a conditional shetar chov may become a central part of some Jewish individuals’ estate plans. Lifetime gifts and revocable trusts may also be useful strategies in certain situations.
Similarly, Islam sets out four duties for a Muslim who dies: payment of funeral expenses; payment of any debts; distribution of one-third of the estate according to the decedent’s will; and distribution of the remaining estate among heirs as set out by Islamic law, or Shariah. These rules can contradict state probate law. In addition, Sunni and Shiite jurists may interpret the rules differently, especially if the deceased has no close family. In this case, too, individuals should take care to ensure that their estate plan reflects their religious obligations. In addition to an up-to-date and comprehensive will, some Muslims may want to consider trusts and other instruments to make sure their assets are divided as they wish. For example, a complete charitable bequest of an estate cannot be made outright because of the family obligations outside of the discretionary one-third. Lifetime gifts may be a better strategy in some cases.
Additional Considerations And Challenges
Choosing Your Team
As I have mentioned, certain religious individuals may want to be sure that their health care proxy thoroughly understands their faith. Some may wish to go further and look for fiduciaries who share their faith as well. A fiduciary is any person to whom you grant the power to act on your behalf or to carry out your wishes. These may include your will’s executor, your legal or financial advisers, or your attorney-in-fact (that is, the person to whom you grant legal power of attorney).
Whether or not your estate planning team members share your faith, it is important to bring up religious concerns early in the process, or even when selecting them. This is true of both fiduciaries and nonfiduciary professionals. Raising the subject will allow you to gauge their knowledge of and comfort level with your priorities. It can also be important to structure estate planning documents to reflect concerns particular to your situation. For instance, documents may include language waiving the prudent investor rule for fiduciaries who are complying with religious rules to which they are not subject themselves.
Individuals seeking investment advice or management may also want to make clear any restrictions on the types of investments they are willing to make on ethical grounds. Members of a variety of faiths may want to avoid investing in enterprises involved with alcohol, gambling or pornography, for example. Just as some investors request managers consider “environmental, social and governance,” or ESG, criteria when investing, other investors may want fiduciaries managing trust assets or other investments to steer clear of industries that violate their beliefs.
Providing For Children
As I have written before, parents of minors have a critical responsibility to choose guardians for their children. This decision is always an important one, but religious parents may want to consider their faith as one factor among many when deciding on a guardian. Does your guardian of choice share your faith? Do you trust that he or she will bring up your child in the way you would prefer? If the answers matter to you, they should be part of the discussion you have with potential guardians before naming them in your will.
Parents may also wish to make conditional bequests tied to religion. The extent to which secular courts will uphold such bequests often comes down to the details. For example, U.S. courts almost never enforce conditions requiring a married beneficiary to divorce his or her spouse. However, a bequest that requires a single beneficiary to refrain from marrying until a certain age or that forbids the beneficiary to marry someone outside a certain faith is more likely to be upheld. A 2009 case from Illinois, In re Estate of Feinberg, hinged on a situation in which a grandmother made a testamentary gift to one grandchild, noting the gift was based on their decision to marry within the Jewish faith, and disinherited the others. This implied gifting as a reward for previous decisions, as opposed to promoting marriage with conditions. The Illinois Supreme Court allowed this approach to stand, though the court noted it would not be permissible if the gifting encouraged divorce.
If you are set on a conditional bequest, especially one relating to a beneficiary’s marriage, it is important to work with an attorney to find the approach most likely to hold up to legal scrutiny. And, as is always true in estate planning, it is best to talk to your heirs frankly and clearly about your plans while you are still alive.
Dispute Resolution
Even with good communication and careful planning, disputes can arise among your family and heirs after your death. As this article has suggested, secular legal authorities may not always resolve disputes following the laws governing your religious tradition. You may prefer that arbitration of your estate plan fall to a private religious body, rather than a secular court. In this instance, your estate planning documents could include a mandatory arbitration clause in line with the applicable religious standards. Some individuals may want to go as far as requiring nonappealable religious arbitration. In these cases, it is critical that you involve a knowledgeable attorney.
If you find such an attorney, you may want to refer family members to him or her. This is perfectly natural. However, doing so can put the lawyer in a difficult position, as issues of confidentiality and balancing potentially conflicting interests could arise. Depending on the circumstances, it may be more practical to ask your attorney for recommendations or to ask family members to seek their own legal representatives.
Estate planning is easy to put off. Some may find it morbid; others may find it dry. But when you take a step back and consider the larger picture, estate planning always rests on the human beings doing the planning. An effective estate plan can be a tool for preserving your religious traditions and practices beyond the bounds of your own lifetime.
