A bequest to a spouse who is the only heir
26-12-2014 | IslamWeb
Question:
Salam aleikum wa rahmatullahi, Dear brother/sister, I'm a reverted Dutch muslima for more than 10 years, Alhamdulillah. My age is 65, Alhamdulillah. I'm the only one in the family who embraced Islam. For 8 years ago I married a moslim from Turkey, Alhamdulillah, may Allah reward him for his concern about me. My husband is many years younger than me, so it is possible that I'll leave this world a long time before him. Only Allah knows who will die first, but I have to know all options about that. I own a house in Turkey, and I paid this house from my own money. Is it possible that I can write a will for him? I have one kid, a son, he is 45 years old and as I said before, he is not muslim and also not interested in Islam. Anyway, we have a very good relationship. His father died already for many years ago. There are no other relatives, only his son, my grandson. The question is, have my husband to sell my house after I died? My husband want everything to arrange in islamic way because he is afraid for to do something wrong. Have I to write for him a will as well so he can stay in this house till his dead? And how I have to share the parts? 50/50? Also it is possible that my husband will die before me. Only Allah knows. Have I to write a will, so my son will have all what I left after I died? And if this is not allowed, what I have to do? Insha' Allah you have a clear answer for me, because it is a real problem for us, how to solve this in a good way. May Allah reward you with all the best, in this world and in the hereafter. wa salam aleikum your sister in Islam
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, we praise Allaah Who has guided you to Islam and we ask Him to make us and you firm in it until we meet Him while He is pleased with us.
Our answer to your questions is summarized in the following points.
1) It is known that the inheritance is divided among the heirs after the death of the person, so if it is only your husband who will inherit from you after your death, then he is entitled to half of the inheritance: he takes half of the house and half of everything else in the inheritance. As regards whether or not you may make a bequest to your husband of the house or anything else from the inheritance, the scholars stated that a bequest from one spouse to the other spouse if he/she has no other heir is forbidden, but it was also said that it is only disliked (not forbidden). However, if a bequest is made to him, he may accept it.
The author of Kashshaaf Al-Qinaa‘, a Hanbali book, said: “If one of the spouses makes a bequest to the other of all his property and he, i.e. the testator, has no other heir, then the beneficiary of the bequest is entitled to all of the property as his prescribed share in inheritance and as a bequest. However, the bequest is forbidden according to the correct opinion of the (Hanbali) School; this is stated (by Imaam Ahmad), as he (Al-Mardaawi) said in his book Al-Insaaf; and it was also said that it is disliked. Al-Insaaf reads: ‘This (the view that it is disliked) is more preponderant (than the view that it is forbidden); and if it was said that this is permissible, it would also be reasonable.” [End of quote]
Hence, according to the view that it is disliked or permissible, it is permissible for you to make a bequest to your husband as long as he is the only heir who is entitled to inherit from you according to the Islamic inheritance law.
2) Your son does not inherit from you as long as he is a non-Muslim because a non-Muslim does not inherit from a Muslim according to the consensus of the scholars pursuant to the Hadeeth which reads “A non-Muslim does not inherit from a Muslim.” [Al-Bukhari and Muslim]
However, it is permissible for you to make a bequest to your son of no more than a third of the inheritance, as the bequest of a Muslim to a non-belligerent non-Muslim is a valid bequest, because the Mother of the Believers Safiyyah bint Huyayy 
made a bequest to some of her Jewish relatives. Ibn Qudaamah said in Al-Mughni: “The bequest of a Muslim to a non-believing beneficiary of the Islamic protection (Dhimmah)…. The permissibility of the bequest of a Muslim to a non-believing beneficiary of the Islamic protection (Dhimmah) was reported from Shurayh, Ash-Sha‘bi, Ath-Thawri, Ash-Shaafi‘i, Is-haaq and the scholars of the Hanafi School; we do not know of any difference of opinion from other scholars. Muhammad ibn Al-Hanafiyyah, ‘Ataa’ and Qutaadah said about the words of Allaah (which mean): {…except that you may do to your close associates a kindness [through bequest].} [Quran 33:6] – they said: it is the bequest of a Muslim to a Jew or a Christian. Sa‘eed said: ‘Sufyaan from Ayyoob from ‘Ikrimah reported to us that Safiyyah bint Huyayy sold her chambers to Mu‘aawiyah for 100,000 and she had a Jewish brother, so she invited him to Islam so that he would inherit from her but he refused, so she made a bequest to him of a third of the 100,000.” [End of quote]
For more benefit, please refer to Fatwa 96163.
3) As regards whether or not you may write a bequest to your son to take everything that you leave after your death, the answer is that a bequest of more than a third from someone who has an heir is forbidden in the Islamic inheritance law, even if the heir is only one person – namely your husband. Ibn Qudaamah said in Al-Mughni about the prohibition of a bequest of more than a third for someone who has an heir: “If she has a husband or if a man has a wife, then it is the same thing (i.e. the bequest of more than a third is forbidden), because the bequest undermines his right, as he is entitled to his share after the distribution of the bequest. Allaah says (what means): {…after any bequest he [may have] made or debt.} [Quran 4:11]." [End of quote]
Since your husband is going to inherit from you, it is not permissible for you to make a bequest to your son of more than a third.
However, if your husband dies before you and you do not have any heir at all, and you want to make a bequest to your non-Muslim son of the entire inheritance, then the scholars differed in opinion about the permissibility of this; some of them prohibited it and some of them permitted it. The permissibility of this is the view favored by Ibn al-Qayyim in his book Zaad al-Ma‘aad. He said: “If the sick person who does not have an heir wants to make a bequest of his entire inheritance to be spent in charity, then is he permitted to do so? There are two views: the more correct view is that he is permitted to do so, because he is prevented in the Sharee'ah from giving more than a third when he has heirs, but if someone does not have any heir at all, then there is no objection to what he does with his property.”
Allaah Knows best.