Children are Muslims if only one parent is Muslim
30-11-2014 | IslamWeb
Question:
I have two non-muslim children (from a previous marriage to a non-muslim woman) and one muslim daughter from a second marriage to a muslim woman. I live in the US, and I need to prepare a will, in the event of my death. Can my will include leaving anything (property or cash) in to my two non-muslim children?
Answer:
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His Slave and Messenger.
First of all, you said that you have "two Children"; this means that they have not yet reached the age of puberty. If this is the case, then they are Muslims and not non-Muslims as you assumed. A young child is not considered non-Muslim as long as one of his parents is a Muslim.
Al-Mawsoo‘ah Al-Fiqhiyyah (The Encyclopedia of Fiqh) reads: "Muslim jurists have unanimously agreed that if a father embraces Islam and has young children, or someone who is legally like them, such as an insane child who has reached puberty, then they are considered Muslims, as a consequence of the father. The majority of Muslim scholars (Hanafis, Shaafi‘is and Hanbalis) maintained that the key factor in this regard is that either parent is Muslim, be it the mother or father; the children are then Muslims as a consequence of their Muslim parent, because Islam prevails and no other religion prevails over it, since it is the religion of Allaah which He is pleased with for His slaves. Imaam Maalik, on the other hand, said: 'The fact that the mother or grandfather is a Muslim is irrelevant in this regard, given that the son is of the same social rank of his father and is attributed to his (father's) tribe.' The Shaafi‘is held that if the young child's grandfather or great grandfather is a Muslim, then the grandchildren (descendants) are considered Muslims accordingly, even if the father is a non-Muslim and is still alive, because Allaah, The Exalted, says (what means): {And those who believed and whose descendants followed them in faith - We will join with them their descendants...}[Quran 52:21] Ath-Thawri said: 'When the young boy reaches puberty, he is given the choice between taking on the religion of his father or that of his mother. Whichever he chooses, it becomes his religion.'" [End of quote]
Hence, if your children are Muslims, then it is impermissible for you to include them in your will because they are already among the eligible heirs. No will is to be made in favor of a legal heir as we explained in Fataawa 90763 and 26630.
If either, or both, of your children has reached puberty and chosen to convert to any other religion, he is no longer considered a Muslim and is not entitled to be an heir to you because he is an apostate, and the non-Muslim does not inherit from a Muslim. If you wish to make a bequest in favor of your non-Muslim sons, then you should know that Muslim scholars have held different opinions regarding the validity of such a bequest. The Hanafis, Maalikis, Shaafi‘is (in their less preponderant view), and one of the views of the Hanbali school of Fiqh, held that a Muslim's bequest to an apostate is invalid; while the preponderant view according to the Shaafi‘is and the standard view of the Hanbalis is that the Muslim's bequest is valid to an apostate who is identified by name, but if the apostate is not identified by name, then it is invalid to him. The Shaafi‘is made an exception in this regard; they maintained that the bequest made in favor of an apostate is valid unless he allied with a non-Muslim country against Muslims, joined their forces, and lived under their protection; in this case, the bequest made in his favor is absolutely invalid.
Based on the opinion that the bequest is valid, you are entitled to make a bequest of not more than one-third of the estate, because a bequest made in favor of a non-heir should not exceed one-third of the estate (to be valid and binding).
Allaah Knows best.