Cohen v. Shushan, et al., — So.3d —-, 2017 WL 1018422 (Fla. 2d DCA March 15, 2017)

A person’s “status” as a surviving spouse triggers all sorts of valuable inheritance rights under Florida law, including entitlement to inheritance by intestacy (see here); elective share, family allowance, homestead and exempt property rights; inheritance as a pretermitted spouse; and preference in appointment as personal representative. Not surprisingly, whether or not a decedent was validly married is often the central question in a contested estate.

If the couple was allegedly married in Florida, figuring out their marital status is easy. We legislatively abolished common-law marriage in this state half a century ago (see F.S. 741.211), so whether you’re married or not isn’t a facts and circumstances kind of question. If you don’t have a marriage license, you’re not married, end of story (see here).

But what if the couple was allegedly married in some other part of the globe that recognizes various forms of civil unions? In those cases whether or not they were married will turn on the law of the foreign jurisdiction. Here’s how the 2d DCA summarized this point.

“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”); Farah v. Farah, 16 Va.App. 329, 429 S.E.2d 626, 629 (1993) (“A marriage that is void where it was celebrated is void everywhere.” (citing Spradlin v. State Comp. Comm’r, 145 W.Va. 202, 113 S.E.2d 832, 834 (1960))). We must look, then, to the evidence presented below as to whether reputed spouses are considered married under Israeli law.

What about the in-between cases?

In Florida, whether or not you’re married is a yes or no question; either you are or you’re not. We don’t do in-between. In much of the world a person’s marital status isn’t anywhere near as cut and dry. For example, in some parts of the world living together in a committed relationship can trigger property rights that are the functional equivalent of a common-law marriage, while never bestowing the status of being “married” on the couple. Does that distinction matter? That’s the question at the heart of this case.

“Reputed” spouses under Israeli law:

Marriages in Israel are performed only through religious institutions. Jewish couples must marry through the Chief Rabbinate, whereas Catholics, Druze and Muslims all marry through their own state-sanctioned and publicly funded religious legal systems. Bottom line, any couple whose marriage is not in keeping with the religious law of their respective religions, or who belong to a religious tradition that does not have its own state hierarchy, simply falls outside the boundaries of marriages recognized by the Israeli state.

For these reasons many Israeli couples have opted to cohabitate and establish families without going through the process of obtaining religious marriages. These couples are referred to as yedu’im be-tzibur (ידועים בציבור), translated literally as a couple “known in the public,” but also referred to as “reputed spouses” (that’s the term used by the 2d DCA), and they’re entitled to all of the property rights we in the U.S. would normally associate with a common-law marriage, but they don’t have the legal status of being married. Here’s how the 2d DCA summarized this point:

While Israel has . . . 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 . . . 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.

OK, so we get the distinction: reputed spouses aren’t married under Israeli law. But here’s the kicker: under Israeli law they are entitled to inheritance rights, just like married couples, a key point made by the dissent in this case:

[T]he rights of reputed spouses are nearly identical to the rights of formally married people in Israel. One of those rights of reputed spouses is entitlement to an inheritance, as evidenced by the Israeli inheritance order contained in the record.

If a “reputed” spouse is entitled to inheritance rights under Israeli law, what does she get in Florida?

So if foreign law says a couple isn’t married, but the survivor’s still entitled to inheritance rights equivalent to those of a surviving spouse, what does he or she get in Florida? Nothing. Why? Because a person’s “status” as a spouse really matters. In Florida, we don’t do in-between; either you’re married or you’re not. And if you’re not married you don’t get spousal inheritance rights, so saith the 2d DCA:

[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. Cf. Johnson, 571 So.2d at 542; Montano, 520 So.2d at 52–53; Betemariam, 48 So.3d at 125; Farah, 429 S.E.2d at 629. We cannot affirm such a construction of the law.

The dissent charges that this view of Israeli law amounts to a “myopic focus on the technical status of marriage.” True enough.[FN8] Comity requires us to look, closely and carefully, at a foreign nation’s law in this case, not blur its distinctions. Our decision upholds a fine—but very clear—distinction that has been set within Israel’s marital law, one we must maintain out of respect to Israel’s law-making authority. Because Ms. Shushan and the late Mr. Cohen’s legal union was not entered into through any recognized religious authority, they were not married under Israeli law. Ms. Shushan, therefore, could not be a surviving spouse of Mr. Cohen under section 732.102. Accordingly, we reverse the probate court’s order and remand this case for further proceedings consistent with this opinion.

[FN8] Although we might quibble with the implication in our colleague’s choice of adjective that one lawful marriage might merely be “technical,” as opposed to another that would, presumably, hold more genuine legal significance. Under the law, one is either married, or one is not.