Question # 360: I am my wife are reverts to Islam but our children are non-Muslims. Can they inherit from me on my death?
bismi-llahi r-raḥmani r-raḥīm,
Assalamu ‘laikum warahmatullahi wabarakatuh,
All praise and thanks are due to Allah (سبحانه و تعالى), and peace and blessings be upon His Messenger (صلى الله عليه و سلم).
First of all, we implore Allah (سبحانه و تعالى) to help us serve His cause and render our work for His sake.
Shorter Answer: Regardless of how closely related to the deceased they might be, non-Muslims cannot be legal heirs for their Muslim relatives. The only way they may inherit is through a bequeathal that does not exceed one-third of the estate. The maximum limit of one-third can be exceeded if consented to by the other legal heirs, in which case the shares of the heirs are reduced accordingly.
Long Answer: Usamah, Jabir, and Ibn ‘Amr (رضي الله عنه) reported that Allah’s Messenger (صلى الله عليه و سلم) said: “The followers of two different religions may not inherit from each other” (Recorded by Abu Dawud, an-Nasa’i, and others. Verified to be authentic by al-Albani (lrwa ‘ul-Ghalil))
Also, Usamah (رضي الله عنه) reported that Allah’s Messenger (صلى الله عليه و سلم) said: “A nonbeliever cannot inherit from a Muslim, nor a Muslim from a nonbeliever” (Recorded by Al-Bukhari, Muslim and others)
[Hence,] a disbeliever cannot be an heir for a Muslim. However, if a Muslim has a non-Muslim wife or mother [or children], he may bequeath part of his estate to them. Thus, the Will provides an important avenue for him to support such individuals after his death. [Therefore,] one may also direct a part of his estate to other unrelated individuals or institutions as he sees fit and pleasing to Allah – not intending thereby to inflict harm on the legal heirs.
Sa’d Bin Abi Waqqas (رضي الله عنه) narrated that he was with Allah’s Messenger (صلى الله عليه و سلم) in the Farewell Pilgrimage. He was struck by a severe illness in Makkah and felt that he was close to death. The
Messenger (صلى الله عليه و سلم) visited him, and he said to him, “0 Messenger of Allah, I am reduced to this state because of illness. I have a vast wealth, and no heirs except a daughter. Should I bequeath two thirds of my estate?” He (صلى الله عليه و سلم) replied, “No!”. He said, “One half of my wealth then?” He (صلى الله عليه و سلم) replied, “No!” He said, “One third of my wealth then?” He (صلى الله عليه و سلم) said: “Yes, one third; and even one third is too much. Indeed, O Sa’d, you’d better leave your inheritors rich after you than leave them as a burden, begging people (and he (صلى الله عليه و سلم) expressed this with a motion of his hand)
Indeed, O Sa’d, you will never spend money seeking by it Allah’s Face, but you will be rewarded for it – even for the morsel of food that you put into your wife’s mouth.…” (Recorded by Al-Bukhari, Muslim and others)
To this, Ibn ‘Abbas (رضي الله عنه) said: “I wish that people would reduce their bequests from one-third to one-fourth, because the Prophet (صلى الله عليه و سلم) said that even one-third is too much.” (Recorded by Al-Bukhari, Muslim and others)
Among the things that we learn from the above hadith are the following:
- The most that one may bequeath in his will is one-third of the entire estate, but it is better not to exceed one-fourth.
- If one maintains a sincere intention of pleasing Allah through helping the individual to whom he bequeaths, his bequeathal will count as a sadaqah that will benefit him after death.
- The inheritance is a means that Allah made for supporting one’s nearest kin. One should not rob them of this right or cause them to fall into poverty after him.
- The amounts and shares of the estate that go to the children, spouses, parents, siblings, or further relatives have been ordained by Allah the Most Wise. One may not challenge that by proposing alternative shares that seem more reasonable to him – thereby imposing his limited knowledge and experience over the unbounded knowledge and wisdom of Allah (سبحانه و تعالى).
(The above reply is based on the book ‘Inheritance Regulations and Exhortations’ by Muhammad al-Jibaly)
[Further, the following points need to be considered:]
- The religion of an individual as regards inheritance is his or her religion at the time of death of the propositus. [However,] according to Hanbali Fiqh, if a non-Muslim becomes a Muslim after the death of a Muslim propositus but before the actual distribution of the estate he/she is entitled to inherit.
- The maximum amount of estate that can be bequeathed must not exceed one-third of the estate of the deceased after payment of debts and funeral expenses unless consented to by the other legal heirs, in which case the shares of the heirs are reduced accordingly. This is to protect the interest of the legal heirs.
- If the bequests are greater than one-third of the net estate and the heirs do not consent, then the bequests are abated proportionally so that the total is up to one-third of the net estate. This is the majority view.
- Legal heirs of the testator can consent to bequests greater than one-third of the net estate. The power of each heir to ratify bequests greater than one-third is directly proportional to the inheritance share of each heir. Of course, the legal heir must have the legal capacity to give such a consent.
- In Maliki Fiqh, the application of the one-third is absolute, a testator can never bequest more than one-third of the net estate. If the legal heirs consent to bequests greater than one-third of the net estate then according to the Hanafi, Shafi’i and Hanbali Fiqh, the legal heirs are effectively removing the restriction placed on the testator and the bequest is a direct transfer from the testator to the legatee.
(The above reply is based on the book ‘The Islamic Law of Succession’ by Dr. A. Hussain)
Allahu A’lam (Allah (سبحانه و تعالى) knows best) and all Perfections belong to Allah, and all mistakes belong to me alone. May Allah (سبحانه و تعالى) forgive me, Ameen.
 One who make a Wasiyyah (Will)
 The beneficiary of the Wasiyyah (Will)