I wonder if you can guide me on a personal matter. I have written my will and alhumdullilah have advised my executors to seek guidance from a knowledged sheikh in order to ensure inheritance is distributed according to sharia law. Inshallah it will be.
However there is a matter, which I want to include in my will. I remarried recently and as my husband, he will be entitled to a share of the inheritance, as yet we have no children and it may not be possible. Upon marriage my husband agreed to make monthly payments to me. However to date he has never paid me, he is a good man, I have had no problems in his treatment of me and I consider him to be a good man alhumdullilah.
Having brought up the issue of the non payments he said he would make payments however months later he still hasn't. In short I would like to ask if I can consider the non payments as debt he owes me. As I would like to include his debt in my will as money owed.
Please don't get me wrong I have no resentment against him but I consider it my haq, as when we agreed marriage we discussed a keep for me and it was him who Came up with this figure. The question is can I add this in my will. Im conscious it may cause him hurt at the time my will is read but as a Muslim we should all be good for our words and I although I am sure in my lifetime this conversation will come up with him.
And may even get resolved but if it doesn't and he still doesn't pay me do I islamically have the right to write such a request in my will, is it permitted?
Looking forward to your response
[Name Withheld for Privacy]
I pray that Allah keeps you and your family in Allah’s grace and surrounds you with forgiveness and blessings. If I understand correctly, the money promised to you is not a part of your mahr but is a part of your maintenance (nafaqah) agreed upon beforehand. In the opinion of the majority of jurists, nafaqah agreements are permissible and they can expressly be adjusted or modified at a later date on the basis of need and ability. There is no indication in your message that this nafaqah agreement has been modified or altered and if your husband has not made payments because he is financially unable to do so, I would strongly urge you to modify the agreement to reflect both your needs and his ability, especially since he seems to be an acceptable spouse in all other regards. This would be more blessed and pure in God’s eyes. However, assuming that he is able to pay and that the agreement has not been modified and that he has acknowledged this as money owed to you per the agreement, there is no disagreement that I am aware of among the various schools of thought that this money constitutes a debt upon the husband owed to the wife. It is certainly permissible to state in your will that your calculation of the nafaqah is for this amount and that if your husband does not contest the amount accrued, then it is well settled in Islamic law that the payments of debt take priority in inheritance. In other words, whatever your husband is to inherit from you, before he may inherit any amount of money, his debts towards you must be discharged. I think it is permissible for you to make explicit what is already the rule of Shari‘ah that before collecting his inheritance, the amount owed to you must be subtracted from such an inheritance. Moreover, it is permissible for you to calculate the amount owed to you and request that this amount be subtracted from the inheritance. As a matter of righteousness before Allah, make sure that your husband does not contest or disagree with the amount owed to you. So for instance, if you think you are owed one-thousand dollars, make sure that your husband confirms that in fact this is the amount owed. Preferably, add as a codex to your will some form of written acknowledgement by your husband of his debt to you and how it is to be calculated month-to-month.
I understand that, al-hamdulillah, you have a good relationship, but you are correct that if indeed this is your agreement, then you have a vested haqq and it is your right to insist upon the enforcement of this haqq. I hope that this has answered your question and you can write me with further questions if they occur to you. This is my fatwa on the matter, and only Allah knows best and we always ask for Allah’s forgiveness and blessings.
Shaykh Abou El Fadl