For a lot of men (women too, but let’s leave it at men), life can get complex. Instead of focusing on the “why” let’s talk about how planning for Islamic inheritance deals with some of this complexity, especially when it comes to things like “illegitimate” children and “secret marriage.”
Islam prohibits Zina. You already know this. It is legal in the United States, though some states still have the crime of adultery on the books, unenforced. The term used for children who are born out of wedlock for much of American history is “illegitimate” or “bastard”- the term “illegitimate” is still used. However, the term in some courts is “non-marital child.” The courts and system of law do not want to imply that a child is somehow inferior to a child that was born in wedlock. Indeed, they are not. However, I will use the term “illegitimate child” here since that is the term most commonly known.
“Illegitimate” still matters in state law
Historically in our laws, illegitimate children did not have any right to inheritance through intestacy. Now they do. This right is not automatic though. Bear in mind there is no such thing as a “right to inheritance” per se in much of the United States (especially not California), this is just a right that occurs when there is no will or living trust and if there is one, it somehow forgets to mention an illegitimate child. But still, don’t assume this will happen. As was shown in a recent California case, it is necessary to either establish paternity before death or have the father acknowledge the son or daughter. If neither of these things happens, illegitimate children get nothing.
The legal system still has the problem of people just popping up after death and claiming to be illegitimate children to get their inheritance. There should be some way to control this.
Children born under wedlock are presumed to be marital children. Of course, presumptions are not always right.
In Islam, there has been no change in the view that a child from Zina cannot be a beneficiary of the father’s estate. A child may be the beneficiary of the mother’s estate. They can also be the beneficiary of the father’s estate through the wasiyyah, which is the up to ⅓ of an estate that can go to recipients, including family members not entitled to inheritance in Islam and charities after death.
Children of Zina and “Illegitimate Children” under State Law are not the same thing
Muslims can get married in Islam without getting married under state law. In Islam, getting married can be quite straightforward. It is a contract between two people, and there need to be two witnesses, and a gift is involved, though the marriage may be valid before anything is paid or even explicitly agreed. That is all. There is no requirement that an Imam officiate, or that there be a written document, a blood test, a waiting period, “pre-marital counseling” or much of anything else. Men can marry women who are Muslim or people of the book. I have recommended people who don’t want to get married under state law (and there are valid, non-shady reasons to do this) create a cohabitation agreement. However, this is not a formal Islamic requirement.
In the various United States, there are a series of rules governing marriage. Often you cannot marry right away (there are exceptions), and you often need to jump through several hoops. In general, Marriages are public records that anyone can read. There are exceptions called “confidential marriages.” These are legal under state law but are otherwise secret information not available to the public. Sometimes people get married in confidence to avoid judgment from a difficult family situation. There would still be a way to prove the marriage though, say in an inheritance dispute.
The Rise of Secret Marriages
So this is where we get to the widely condemned practice of some Muslims: Secret marriage: Where a man decides he is going to marry a woman in a “drive-by nikah,” often a second or third wife, without telling his first wife, his family, his community or anyone else, except the two witnesses. He conducts all the minimum formalities of marriage in Islam. Such unions can last days, months, years or decades. Sunnis cannot get married short-term if they intended that from the start. Shias can get “married” for short term contracts, a practice is known as Mu’ta, but no spousal inheritance rights are created. I address Shia inheritance rules (and Sunni rules of course) in a recent book on Islamic Estate Planning.
Secret marriages are not limited to Muslims of course. Non-Muslims do a lot of it. Of course Non-Muslims and Muslims also the option of adultery. It’s just that for Muslims, nikah is easy to do, and for men, being married is not a bar towards getting another nikah. Also, adultery is haram, though I realize this fact does not stop a lot of Muslims.
Secret marriage is often the crime of bigamy, especially when people get married in a way the state recognizes, then marry again the same way but in secret.
With Muslim men though, there is often no need to hide the first marriage from the second wife. Sometimes the first wife knows about the second wife as well. The secret may be from everyone else. However for purposes of this article, when we discuss secret marriages, it means secret from the first wife.
It Gets Rocky and there is a Baby
So it may not a big surprise that secret marriages often do not work out over the long term. I don’t think anyone has done studies, but my somewhat educated guess is that they fail more often than marriages that everyone knows about. If there is a child comes from this marriage, it gets complicated.
We cannot characterize the child of a secret marriage as illegitimate in Islam. However, under state law, the child is illegitimate (or a non-marital child depending on your sensibilities).
The father, who may have had a complicated relationship with the baby’s mother, may not see or publicly acknowledge the child. He may pay child support under the table that the child never knew about. This father can easily have an heir in Islam that is not entitled to anything under California law. The man’s other children from the first wife and the first wife herself, may not even know about the child’s existence. It is a formula for injustice to orphans. Here you have a child who is legitimate in Islam, treated as illegitimate under state law. That is a mess.
How to fix this
Secret marriages, whatever you think of them (and that view is probably negative) are just a fact of life. Men sometimes lead complicated lives full of secrets. Since “drive-by nikah” is not usually zina, we will have more children that are illegitimate under state law but completely legitimate in Islam. However, both men and women should plan to avoid injustices that come from this culture. Denying someone their rights to Islamic Inheritance is serious.
1) Acknowledge all children and fathers
Sometimes this is complicated. Men are sometimes too frightened and won’t own up to their actions with family members; the relationship with the child’s mom may be too complicated. It may be easy for me to say, don’t keep these secrets since they blow up later on in unpleasant ways, but you already knew that. So you will need to keep a set of documents and correspondence that acknowledges this history and keep it with a trusted source. Whoever it is that witnessed your nikah should perhaps also know about the children that may have resulted from this relationship. Mothers should document who the father of the child is so as to protect the child’s rights. It’s amazing how often women want to keep this information secret.
2) Get your own lawyer
You may need to have a lawyer that is different from your first wife’s lawyer. You need to maintain confidentiality and attorney-client privilege. In Estate Planning, it is common for a husband and wife to hire one lawyer. A single lawyer means loyalty to both, and an inherent conflict the lawyer would not be able to resolve. A husband and wife have somewhat different interests at this point.
Note that often by default in American culture and under the legal system, everything goes to the surviving spouse. Giving everything to the surviving spouse is impermissible in Islam. However, even the comfort you may have that the inheritance may end up with your children (not necessarily the case) definitely won’t go to a secret child from another woman.
3) Men may need to accept the need for some public action.
Be named as the father in the child’s birth certificate, get partial custody and pay child support through a legal process. At some point, men need to own up to what they did and deal with the consequences. If people find out, they find out. This is far better than continuing an injustice.
If you are going to map out your family’s financial future, you need to consider the costs of nursing home care seriously. I know what a lot of Muslims think though, both parents and adult children: that would never happen. Children, children-in-law, everyone else, at least in the abstract might be adamant that this would never happen. Unfortunately, it is often unavoidable.
