Question : A question was asked regarding the inheritance rights of children born outside legal marriage. If the parentage of the father is known, does the [illegitimate] child inherit from him?

Fatwa in Brief: The parentage of the father is not accepted unless the conception [of the child] occurs within the framework of a valid, stable marriage, or [even] within a marriage that is legally flawed; it [the parentage] is not recognized, however, if a child is born outside of marriage altogether (min zina).

The Permanent Committee, 20/387

Response:

The legal validity of a relationship between a child born outside of wedlock to his/her father [who has had sex outside of marriage] is not accepted according to the majority of jurists. Ishaq ibn Rahwiya and Ibn Taymiyya and others, however, argue in favor of the idea that such a relationship is legally recognised.

Commentary:

Children born illegitimately are children born as a result of sexual immorality (fahisha). Here, the rights of parentage naturally belong to the mother, and not to the father. Thus, the child should only inherit from her [the mother’s] side [of the family] because the child’s relationship with her [the mother] is beyond doubt.

Regarding the relationship between this child and his/her father, the majority of scholars deny its legal validity, even if the father confirms that the child is his. The reason underpinning this is that [within the framework of a legally valid marriage] parentage is a ‘blessing’ (ni‘ma); whereas sexual intercourse outside of marriage (zina) is a moral crime, which should not lead to [or described as] a blessing. However, if the father confirms that a child belongs to him, and does not mention that s/he [this child] was born outside of marriage – and the conditions to confirm his declaration are present – then, on these grounds, the child will be treated as his [according to Islamic law]. This decision will repair [the original sin], and if one of them dies, the other will inherit.

According Ishaq Ibn Rahwiya and Ibn Taymiyya and others argue in favour of the idea that such a relationship [between father and the child born outside of marriage] is legally valid. They argue that, as an act of sexual immorality (zina) is a concrete reality, we may assume that [if he comes forward to announce the fact] the parentage of the father becomes as apparent as the parentage of the mother. In this sense, the family tree is not broken, and the child will suffer neither harm nor disgrace for a crime that s/he did not commit. God says:

“Say: Shall I seek another than Allah for Lord, when He is Lord of all things? Each soul earneth only on its own account, nor doth any laden bear another's load. Then unto your Lord is your return and He will tell you that wherein ye differed”. (Q. 6: 164)

According to this second opinion, the child inherits naturally from his father, and vice versa. Inheritance is a natural condition of [the workings of] the family tree. Hence, according to these scholars [Ishaq ibn Rahwiya and Ibn Taymiyya] the child is legally recognized, and thus able to inherit from his father [despite the latter’s act of immorality].

Dr. Anas Abu Shadi