Fixed Shares in Intestate Distribution: A Comparative Analysis of Islamic and American Law

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Brigham Young University Law Review


The purpose of this article is not to study further the distributive preferences of decedents-for which there is certainly a need. Rather, it is to present some of the problems which arise when proportional shares are incorporated in a scheme of intestate succession and to propose various techniques for dealing with these problems suggested by a study of the Islamic legal system, which has incorporated the idea of proportional shares in its intestate succession law. Therefore, the article begins with a description of the Islamic system followed by a survey of existing American intestate succession laws. It then discusses the various techniques used in the Islamic system to accommodate a scheme of fixed proportional shares and suggests how they may be used in an American scheme. The conclusions of this article will be confined to problems arising in the construction of a scheme of proportional shares. There is no attempt to expand on the substantive conclusions of the ABA study concerning the proportions which should be allocated among the different classes of heirs.

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