Introduction to Religion and Estate Planning

For many clients, religious beliefs play an integral part in daily life. In crafting an estate plan, these beliefs must be addressed so that the planning and documentation can be consistent with the client’s faith. Drafting a living will, planning for death, and the myriad of issues estate planners regularly confront in helping any client have profound religious implications for a significant number of clients. Many, perhaps most faiths, place importance on key issues such as:

• Charitable giving.
• End of life medical decision making.
• Burial, funeral, and other post death arrangements (rituals, autopsies, etc.).
• Transmitting religious values to children and other heirs.
• Disposition of assets on death.
• Ethical and miscellaneous issues (disinheritance, in-terrorem clauses, mandatory arbitration of certain claims before a religious body, charging of interest, investment standards, etc.).

Addressing these issues can affect every estate planning document and technique. Religious issues are too often overlooked for a variety of reasons:

• While some clients are aware that living wills and health care proxies may need to consider religious preferences, and they advise counsel of this, many are not aware of the significant religious implications of other transactions and documents. This can result in devout clients not informing counsel of matters that need to be addressed. Unless the draftsperson and planner themselves raise the issues, they may be overlooked. Not only can this violate fundamental wishes of the client, but it can often result in considerable strife amongst surviving family members especially if different levels of observance, or even different faiths, are involved.
• It is generally assumed that if a client is not religious, then nothing need be addressed in that client’s documents. This is a dangerously incorrect assumption. It is significant that clients who desire not to use religious principles to govern their documents and planning make it known in order to avoid incorrect assumptions by family and others that religious restrictions or customs should be applied when they were in fact not desired. The level of diversity of religious affiliation and observance among family members can be substantial. If a particular client does not wish religious observances of other family members to be imposed on him or her, an express statement that certain rituals or practices should not be imposed is vital for others to understand the client’s wishes. To appropriately disclaim religious adherence or desires, the practitioner needs almost as much an understanding of the religious principals as when affirmatively applying them.
• Many practitioners are reluctant to address religious issues, viewing them as outside of the purview of matters appropriate for an attorney or estate planner. The tremendous impact which religious rituals and traditions can have on each estate planning document and many of the common estate planning techniques practically assures that important personal goals of the religious client will be violated if the planner does not address them. No practitioner would knowingly violate a client’s direction as to which heirs should receive distributions under the client’s will. Religious requirements for how assets should be distributed, including charitable directives, are no less fundamental to fulfilling the role of draftsperson or planner. Religious issues simply cannot be ignored.
• Religious issues are complex and difficult to understand. Applying what are often ancient religious principles in an environment of complex tax and property laws is daunting. The fear of incorrectly addressing a client’s religious issues should not dissuade practitioner from making the effort. In fact, the solution to this concern is simple and practical. Clients should be instructed to have their religious adviser review whatever documents are drafted to conform to a client’s religious issues to assure proper implementation. Practitioners do not have to be expert in the customs of any particular faith. Merely identifying the potential of religious issues a client may wish to address will assuredly be greatly appreciated.
• The real reluctance and practical difficulty for practitioners is identifying accessible sources that provide practical and specific information and sample clauses which can be used. Fulfilling this need is the objective of this series of articles on religion and estate planning. Consistent with the above, these articles will provide a starting point for practitioners to raise religious issues to determine if clients wish to address them, and if so, provide background information and sample language which clients should review with their religious advisers. Given the myriad of interpretations and variations of observances none of the statements or provisions in this article, and later ones in this series, should be presumed authoritative, as they’re not. But just as noted above, an effort to begin to address these matters will hopefully provide you with a new tool set to better serve a surprisingly large segment of clients.

This article is being prepared for a presentation for the ABA Leadership conference on behalf of the Diversity Committee. Addressing the variety of different religious observances of clients is another way to better help clients achieve their personal goals. It will hopefully prove to be a rewarding opportunity for practitioners to gain familiarity with the philosophies and beliefs of the fascinating mosaic of our society. As Joseph Campbell discovered in his analysis of the myths common to so many cultures and religions, this process will highlight for practitioners that, in spite of the unique terminology and customs of each religion, there is a surprisingly common theme of underlying values. For most religions these include charitable giving, caring for those in need, and passing on appropriate values to later generations. These religious themes represent a meaningful common link between all faiths.

A personal note: This article and other materials on this website are the result of an extensive process of reading, research, and interviews. While I have endeavored to portray every faith in a positive and accurate light, I am certain that I have fallen far short in many instances. I apologize in advance for any errors, oversights or inaccuracies, of which there are assuredly many. Please email any clarifications, corrections, and recommendations to me at shenkman@shenkmanlaw.com, and online versions of these articles will be revised accordingly to assure that those relying on them in the future are not misled. If your corrections are applicable for a specific sect or group, so state and the updates will indicate the variations so that they will be appropriately applied.