Estate Planning should not be just about the transmission of wealth. Estate planning is also about the transmission of values. For many, this encompasses the passing on of religious beliefs. With a modicum of effort, every legal document and transaction can be reconciled with your religious views.
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, regardless of the question of God’s existence. 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, and the overall “tone” of your documents should be consistent with those beliefs.
Even if you are 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 do not want. Say you have become more “modern” and less observant in your faith. Out of respect for family, at least consider addressing religious considerations. If you are 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.
If you are not religious do not assume that nothing needs to be addressed in your documents. This is a dangerously incorrect assumption. If you have determined you do not want the traditions of a particular faith, or any faith, adhered to, then it is 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 do not want religious observances of other family members imposed you, then an express statement that certain rituals or practices should not be followed is vital.
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 will not 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 the tithing of 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. In contrast, under Jewish and Islamic law, saving the mother’s life is generally given preference to that of the fetus.
Unless this matter is expressly addressed in your living will, no one is able to 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.
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 that provides 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, it cannot be assumed that they will know 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 and 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 religions’ 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.
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”.
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