For inheritance rights, whether a deceased Florida resident is married can matter a lot – Florida surviving spouses receive one-half or all of an intestate estate, and surviving spouses can claim elective share, exempt property, and homestead rights. Many people move to Florida late in life, already married, or perhaps not. Florida, like all states in the United States, recognizes lawful marriages performed in any other state. But common law marriages and arrangements from foreign countries, such as an Israeli “known in public” relationship, can create issues as to whether or not the survivor is recognized as a spouse under Florida law.
Florida recognizes civil and common law marriage if created in another state. Under the principle of comity, Florida also recognizes a marriage performed in a foreign country, if valid under the laws of that country. In some countries, there are civil arrangements similar to marriage, but are not technically marriages. Are those valid in Florida?
What is an Israeli “Known in Public” Arrangement?
Marriage and divorce in Israel are the responsibilities of recognized religious authorities. Each religion controls its own laws, so that there are separate systems for those of Jewish, Druze, and Muslim faith. There are also ten recognized Christian denominations, each with their own system.
The marriage laws for Jews in Israel have restrictions, particularly with converts to Judaism, second marriages, and who is allowed to perform a wedding ceremony. For these and other reasons, many Jewish couples in Israel choose not to marry in a religious Jewish ceremony, but instead cohabitate as a married couple.
Israeli civil now gives limited recognition to a couple that cohabitates, known as yeduim batsibur (ידועים בציבור), meaning a couple who are “known in the public” as living as husband and wife. Couples cohabitating in this fashion are entitled to social security disability and death benefits, for example. The concept seems somewhat similar to “civil unions” in the United States, which were laws enacted by a few states to allow same sex couples to receive some of the benefits of being married, before the Supreme Court ruled that same sex marriage was allowed as a Constitutional right.
Does Florida Recognize Foreign Country Civil Unions?
No. Florida does not treat persons in foreign country civil unions as married for inheritance purposes. The recent case of Cohen v. Shushan, 212 So. 3d 1113 (Fla. Dist. Ct. App. 2017) explains why.
Mr. Cohen was in an Israeli “Known in Public” relationship with Ms. Shushan. Mr. Cohen died, with property in Florida, and without a will. Is Ms. Shushan recognized as a surviving spouse for purposes of Florida inheritance law because of her Israeli known in public relationship with the decedent? The Florida Court said no.
Florida does not recognize anything short of a lawful marriage from a foreign country.
Ms. Shushan’s position was that her Israeli known in public relationship should be recognized under Florida law:
[S]he should be considered the decedent’s wife for purposes of inheritance and entitled to a surviving spouse’s share of this property. According to Ms. Shushan, she was a “common law spouse” of Mr. Cohen at the time of his passing, a legally recognized relationship in Israel, which, she argued, was the functional equivalent of marriage. Ms. Cohen did not dispute that Ms. Shushan was indeed her late father’s “reputed spouse” in Israel but, she argued, that legal status was not one the Israeli state recognizes as marriage. Because Israel’s law limits marriage to a union formed under the auspices of a recognized religious authority, Ms. Shushan was never Mr. Cohen’s married spouse, according to Ms. Cohen.
Ms. Shushan had a Israeli legal expert testify at trial, as follows:
Ms. Shushan’s expert, Ruth Dyan, testified that reputed spouses enjoy many benefits under Israel’s law, including succession or inheritance rights, social security benefits, and financial support and property distribution should the couple separate, all of which, she remarked, are “exactly as a married couple.” She observed that a couple need only live together under the same roof and share a life and future together in order to establish a reputed spousal relationship. And she confirmed that Ms. Shushan and Mr. Cohen had satisfied the law’s elements to establish a reputed spouse relationship in Israel. Ms. Dyan emphasized that “the Israeli State recognizes common law spouse as equal to marriage,” but she was very clear in her testimony that the two relationships—marriage and reputed spouses—remained distinct under Israel’s law: “[I] have to explain, in Israel, we don’t have the common law marriage because under the Israeli law only religious marriage is recognized . . . .”
The Court explained how relationship outside of Florida will or will not be treated as a marriage under Florida law.
Florida has traditionally approved of the sanctity of marriage, and the act of marriage, regardless of where it is contracted.” Johnson v. Lincoln Square Props., Inc., 571 So. 2d 541, 542 (Fla. 2d DCA 1990). Thus, “[u]nder principles of comity a marriage by citizens of a foreign country, if valid under foreign law, may be treated as valid in Florida . . . .” Montano v. Montano, 520 So. 2d 52, 52-53 (Fla. 3d DCA 1988) Conversely, if a purported marital relationship in a foreign jurisdiction would be deemed invalid in that jurisdiction, it must be deemed invalid here. See, e.g., Betemariam v. Said, 48 So. 3d 121, 125 (Fla. 4th DCA 2010) (holding that because the Commonwealth of Virginia mandated a marriage license as a condition of marriage, and the litigants had never obtained such a license, “[t]he trial court had no choice but to determine that no legal marriage had occurred”).
In denying Ms. Shushan the status as a surviving spouse under Florida law as a result of her Israeli known in public relationship, the court recognized:
Thus, in Israel there is one, and only one, avenue to form a marriage: through a recognized religious authority.
While Israel has also established the reputed spouse relationship as something of an alternative to marriage, and indeed, has conferred a broad array of rights to reputed spouse couples that, as Ms. Dyan observed, are “equal” to marriage, Israeli law has purposely kept the status of these two relationships separate. Reputed spouses are not married spouses under Israeli law.
[M]arriage under the law is not simply a bundle of rights and privileges; it is also a status. While we sense from the case before us that the line, as it were, between the statuses of reputed spouses and married couples in Israel has drawn closer over time, perhaps to a point of near proximity, even near equivalency, nevertheless, as both of the experts who testified before the probate court concluded, that line remains firmly entrenched. For better or for worse, under Israeli law marriage is a different legal relationship than a reputed spouse relationship. To borrow from another ceremonious phrase, the two have not become one. Were we to hold otherwise and approximate a reputed spouse relationship as “close enough” for purposes of marriage, our court would simultaneously diminish, if only imperceptibly, the uniqueness of the marital status in the affairs of society and do offense to a sovereign nation’s authority to define, for itself, the precise boundaries of marriage within its own jurisdiction.
The dissent focused on the parallel between a common law marriage from the United States, recognized in Florida, and the known in public Israeli relationship arrangement:
In other words, a common law marriage is by definition not a ceremonial, religious, or formal marriage (though a ceremony, religious or otherwise, may serve as evidence of the parties’ present agreement to be married). Yet common law marriage, formed by the parties themselves agreeing to be married in the present, is an equally valid form of marriage. Indeed, the Budd court stated that under Florida law there was no recognizable distinction between a common law wife and the wife in a ceremonial marriage. “The law of inheritance, and descent and distribution, dower and other property rights apply alike to common law marriages and ceremonial marriages.” The majority has unnecessarily limited its inquiry to ceremonial, religious, or formal marriages even though it is well established that common law marriage is an equally valid form of marriage which can be formed by two people without any ceremony or approval by any authority.
The definition of reputed spouse is virtually identical to the definition of common law marriage as it is understood in the United States. Both parties’ experts agreed that to qualify as reputed spouses, a couple must share a common household, maintain a family life, and not be married to other people. Both relationships are created by the parties themselves by agreeing to be married in the present and then behaving accordingly.
