Faith in Estate Planning

Estate
Planning should not be just about the transmission of wealth.  Estate planning should be about the
transmission of values. For many, this encompasses the transmission of
religious beliefs. With a modicum of effort, every legal document and
transaction can be reconciled with your religious views.

Religious
Considerations Relevant to Many

According to many surveys,
95+ percent of Americans believe in God or some type of higher power. While
some define religion as a belief in God, not all religions do. While Buddhism
and Scientology are considered religions, Buddhism does not teach its adherents
to believe in God; and Scientology does not necessarily require a belief in God.
For some, spirituality may be a vital part of their lives, but not include a
belief in God. Whatever your religious views or spiritual nature, your estate planning
should be consistent with your beliefs and preferences, or even lack thereof.
Unfortunately, few estate plans address what is viewed as “soft” topics: religion,
spirituality and values. This inadequacy has tremendous personal impact,
because no area of the law is more fraught with religious issues than estate
planning. If you endeavored to live your life in conformity with your religious
beliefs, then your final medical decisions, funeral arrangements and
distributions under your will, the overall “tone” of your documents, should be
consistent with those beliefs.

Should You Address
Religious Matters

Even if you’re personally
indifferent, ignoring religious issues can lead to painful family strife. Even
if religious rituals are not important to you, make the effort to specify what
you do and don’t want. Say you’ve become more “modern” and less observant in
your faith, out of respect for family at least consider addressing religious
considerations.  If you’re debating
whether to conform your estate plan to the doctrines of your faith, consider  the solace that religious traditions,
and the guidance of a priest, rabbi, imam or other religious figure, can bring
to a family suffering through tragedy.

No Religious Beliefs

If you’re not religious
don’t assume that nothing needs to be addressed in your documents. This is a
dangerously incorrect assumption. If you’ve determined you do not want the
traditions of a particular faith, or any faith, adhered to, then it’s incumbent
upon you to make that point clear to avoid incorrect assumptions by family and
others that religious restrictions or customs should be applied. The level of
diversity of religious affiliation and observance among family members can be
substantial. If you don’t want religious observances of other family members imposed
you, then an express statement that certain rituals or practices should not be followed
is vital.

Sampling of Topics to
Address:

Distributions
– Agents and fiduciaries should be given guidance, and granted legal
authority, to disburse funds for religious education (e.g. supplemental
religious education or private school), religious travel (pilgrimages to holy
sites), charitable giving (to inculcate a core religious value in heirs), and
other purposes consistent with your religious goals. Boilerplate distribution
provisions in many documents just won’t suffice.

Charitable Giving
– Every religion advocates the virtues of charity, but charitable giving can be
tailored to reflect the unique nuances of your faith. For example, charitable
giving is an essential part of the Baha’i Faith as it demonstrates devotion to
Baha’u’llah and represents the ideal of charity. Baha’is are expected to give a
certain percentage of their income and assets to Baha’i charitable
organizations through a mandatory donation referred to as “Huququ’llah” (The
Right of God).  Other religions
mandate tithing a certain percentage of income or assets to charity.

Pregnancy and medical decisions – Pregnant women should carefully address the
issues of pregnancy in their living will and/or health proxy since medical
decision making concerning a mother and her fetus vary greatly among different
religions.  Generally Catholicism proscribes
taking direct action that would cause the death of the unborn child, or the mother.  You cannot choose the life of the
mother over the life of the unborn child, or vice versa, since all life is
sacred and that decision lays in God’s hands alone.  Unless this matter is expressly addressed in your living
will, no one may know the degree of your devotion. You cannot expect health
care providers to have the knowledge necessary to carry out your wishes without
clear guidance from you. In contrast, under Jewish and Islamic law, saving the
mother’s life is generally given preference to that of the fetus.

Pain Relief
– Many patients and health care providers view the alleviation of all pain to
be an essential and ideal objective.
There are exceptions. For an Orthodox Christian, the act of suffering
can be an experience providing for purification, redemption, and
salvation.  While suffering is
clearly not encouraged, pain relief to the point of making someone unconscious
during their last days may prevent them from addressing profound and moving observances
essential to their religious beliefs.
The customs of the Christian Orthodox Church encourage you to be lucid
during your last days so that you may be free to confess sins and receive Holy
Communion.  If the attending
physicians are not aware of this, they cannot be assumed to respect and foster
this type of care. Similarly, according to Buddhist tradition, your consciousness
near death directly correlates to the level of rebirth. Excess pain relief
could undermine this. However, Buddhism believes that suffering is the converse
of the optimal state of being. A sensitive balancing of important goals is thus
required.

Funeral and other post death arrangements – Most religions provide for post death rituals
and law. Under Jewish law autopsies and embalming are generally prohibited. In
the Buddhist tradition, it is a common belief that incense should be burned
near death to help provide symbolism of the path upward toward enlightenment
and to guide your last thoughts upward.
Many Buddhists believe that for a period following death often for a
minimum of at least one week, the spirit may remain with the body and,
therefore, the body should not be moved.
These traditions may be impossible to carry out in any medical or health
care facility so it could be quite important to make advance arrangements to
spend one’s last days in a hospice sensitive to these religious beliefs or at
home.  Some religions prohibit
cremation, other religions or cultures favor it.

Transmitting religious values to heirs – Your selection of trustees will have a profound
impact on the transmission of values. Providing a detailed and personal letter
of instruction about the care and upbringing of young children is essential to
transmit values.

Disposition of assets on death – A secular will may have to be modified to
reflect the Baha’i, Jewish, Islamic, or other religious laws of inheritance. The
Quraan and Old Testament include detailed provisions as to how inheritance must
be handled. While there is similarity to both, they are typically addressed in
quite different manners in will drafting. These provisions need to be
coordinated with tax, estate, financial and succession planning, and ethical issues.
For the Christian Orthodox, if you do not provide for your family and
relatives, it is as if you have disowned the faith, and you are worse than a
non-believer.  For Catholics,
general guidelines of charity and justice are vital.

Dispute Resolution – For all faiths, issues of a religious or spiritual nature are
perhaps best resolved through mandatory arbitration before a designated
religious body, not a secular court. Both Buddhism and the Baha’i Faith incorporate
principles that affect how disputes should be addressed. The disinheritance of
an heir, the use of in-terrorem clauses,
and perhaps the use of arbitration provisions need to be evaluated.  The Buddhist theory of Karma provides
that everything done in a particular life, as well as in past lives, influences
and affects future lives.  If you
undertake an act of disinheriting an heir out of anger, it can be viewed as
creating a negative influence that may be carried on through rebirth to the
next life.  Buddhism would advocate
that you take action out of compassion and not anger.

Charging of interest – Both Islamic and Jewish law include prohibitions on the charging
of interest. These concepts can be incorporated into powers of attorney, wills
and trusts. Under Islamic law there are different scholarly views on what
constitutes interest or “riba” so that for different clients, different
provisions may be warranted depending on the view of their advisers.

Investment standards – The Prudent Investor Act and the investment provisions of the
governing document should be tailored to permit a religious or social oriented
investment strategy.

Conclusion

Your personal religious considerations
can, if you wish, permeate your estate plan. Planning should never be
restricted to mere legalities and tax issues because fundamentally, estate
planning is about the “people” not the “stuff”.