Choice-of-law problems involving marital property are relatively uncommon, but when they do come up it’s probably going to be in a probate proceeding. Even for Florida practitioners long accustomed to litigating cross-border matters (both domestic and international) these cases can be challenging. As explained by Prof. Finch in Choice-of-Law and Property, “[i]n the probate context, a court may be called on to identify the various marital domiciles of the deceased and his or her spouse and the appropriate domicile at the time a property transaction occurred. Such identification, in conjunction with the doctrine of tracing, will be necessary to disentangle the various property interests retained by each spouse.”
This variety of choice-of-law case usually involves enforcement of a surviving spouse’s testamentary community property rights carried over from one of our nine U.S. community property states — but not always. The general concepts apply to any form of spousal testamentary property right from anywhere on the planet. Here a Florida court was asked to enforce testamentary marital property rights arising under Articles 225 and 227 of the Turkish Civil Code and referred to by the court as “Tenkiz Davisi”.
Case Study
Tatlici v. Tatlici, — So.3d —-, 2023 WL 7361551 (Fla. 4th DCA November 8, 2023)
This case involved the estate of Mehmet Salih Tatlici, a Turkish businessman who “became one of the wealthiest people in the world in the 1980s and passed away in England in 2009, [leaving] behind an estate that is subject to more than a hundred lawsuits.” Florida’s received its fair share of that litigation.
In this particular branch of the Tatlici litigation highway a Florida administrator ad litem was appointed on behalf of the decedent’s estate. In that capacity the ad litem filed suit seeking to enforce the estate’s property rights against the decedent’s widow and second son based on the Turkish law of Tenkiz Davisi.
Appellant filed suit as the administrator ad litem of the decedent’s estate for the purpose of filing claims on the estate’s behalf against the widow and second son. See § 733.308, Fla. Stat. (2012); Fla. Prob. R. 5.120(a). When a court appoints an administrator ad litem, “[t]he appointee becomes solely responsible to the estate for the administration of that portion of its affairs entrusted to him by the court, and thus supplants in that regard the authority of the personal representative, who continues to be responsible for the administration of all other aspects of the estate’s business.” Woolf v. Reed, 389 So. 2d 1026, 1028 (Fla. 3d DCA 1980). Thus, as administrator ad litem, appellant had authority to file suit to recover monies owed to the estate, which was what appellant sought in the contribution claim—to recover the decedent’s contributions to certain Florida assets to which the estate was entitled under Turkish law. In essence, the claim is akin to a suit for an accounting of the monies the decedent paid for the purchase and upkeep of the properties.
Are Turkish testamentary marital property rights enforceable in Florida? YES
On the eve of trial the judge inexplicably dismissed the foreign marital-property-rights claim finding that “Turkish Law did not create a Florida civil cause of action.” Wrong answer said the 4th DCA. Here’s why:
That the contribution action is based upon the estate’s substantive right to such relief under Turkish law does not preclude its enforcement in an action for a money judgment in Florida. The right to contribution from the widow for assets acquired in her name is governed by the law of parties’ domicile when that right was acquired. See Quintana v. Ordono, 195 So. 2d 577, 579 (Fla. 3d DCA 1967) (one spouse’s interests “in movables acquired by the other during the marriage are determined by the law of the domicile of the parties when the movables are acquired”) (citation omitted), cert. discharged, 202 So. 2d 178 (Fla. 1967); In re Estate of Nicole Santos, 648 So. 2d 277, 281 (Fla. 4th DCA 1995) (same).
Here, the estate seeks money to compensate it for the decedent’s contributions to property; it does not seek the property itself. In In re Siegel’s Estate, 350 So. 2d 89 (Fla. 4th DCA 1977), we held that a note and mortgage were movables, and the law of the decedent holder’s domicile should apply to its disposition, because the note and mortgage did not create an estate in land. Id. at 91. Similarly here, the decedent’s right of contribution in the widow’s assets does not create an estate in land. Therefore, the assets are movables and, as such, are governed by the laws of Turkey, the domicile of both the decedent and his widow.
Thus, Turkish law applies to the claim for contribution. Application of Turkish law was admitted by the default, as was the estate’s right to seek contribution for the decedent’s payments in the acquisition and maintenance of the properties. Accordingly, the trial court erred in dismissing the claim.
What’s the takeaway?
In Florida the administration of an estate is governed by the law of the decedent’s domicile at the time of death. That’s the domicile we all focus on as probate practitioners. This focus ignores a decedent’s marital domicile — a distinct species of domicile that’s never even mentioned in Florida’s probate statutes or rules. That’s a trap for the unwary. Why? Because a decedent’s marital domicile — which in today’s highly mobile society often changes multiple times over the course of a lifetime — can dramatically reshape the ultimate disposition of an estate if at any time in the past that domicile was in a foreign jurisdiction — such as Turkey (or Texas) — with very different spousal testamentary property rights to what we’re accustomed to in Florida. And yes, those non-Florida-law spousal testamentary property rights can be litigated in Florida.