NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DIANA COHEN, )
)
Appellant, )
)
v. ) Case No. 2D15-4629
)
MALI BEN SHUSHAN; NICOLE )
MASHEET EYAL; SHARON LEE )
COHEN; JOEL R. EPPERSON, ESQ., )
as Guardian ad Litem for Shlomo Chich )
Cohen and Or Yam Cohen; STEVEN L. )
HEARN, as Curator of the Estate of )
Yehezkel Cohen, deceased; and )
MICHAEL COHEN, )
)
Appellees. )
___________________________________ )
Opinion filed March 15, 2017.
Appeal from the Circuit Court for
Hillsborough County; Herbert J. Baumann,
Jr., Judge.
Landis V. Curry, III, and Mark M. Wall of Hill,
Ward & Henderson, P.A., Tampa, for
Appellant.
Heather A. DeGrave, Stuart Jay Levine, and
Alan F. Gonzales of Walters, Levine,
Klingensmith & Thomison, P.A., Tampa,
for Appellees Mali Ben Shushan; Nicole
Masheet Eyal; Sharon Lee Cohen; Joel R.
Epperson, Esq., as Guardian ad Litem for
Shlomo Chich Cohen and Or Yam Cohen.
No appearance for remaining Appellees.
LUCAS, Judge.
We have before us an inheritance dispute that poses the question of
whether a couple was ever lawfully married under Israeli law. The probate court
concluded that Mali Ben Shushan and the late Yehezkel Cohen were in a recognized
legal union in Israel at the time of Mr. Cohen's passing; thus, according to the court,
under section 732.102, Florida Statutes (2013), Ms. Shushan was entitled to a surviving
spouse's share of Mr. Cohen's intestate estate. Diana Cohen, Mr. Cohen's daughter,
now appeals the probate court's order. Recognizing the deference we must afford to a
sovereign nation's authority to define, for its own people, the unique status of marriage,
we conclude that the probate court erroneously conflated a domestic union under Israeli
law with marriage under Israeli law.
I.
The facts in this case were essentially undisputed. While living in Israel,
Mr. Cohen and Tami Rana were married in a religious ceremony on September 2, 1981.
The couple had two children, Diana and Michael Cohen. Following their separation, Ms.
Rana moved with the children to Florida, and in 1985, she and Mr. Cohen were
divorced.1
A few years later, Mr. Cohen formed a romantic—and, by all accounts,
enduring—relationship with Ms. Shushan. Beginning in 1990, Mr. Cohen and Ms.
Shushan lived together as a couple in Israel and remained together until Mr. Cohen's
1
Ms. Rana passed away in 2000, predeceasing Mr. Cohen.
-2-
passing in 2013. Ms. Shushan and Mr. Cohen had four children together, ran Israeli
businesses together as partners, and unwaveringly held themselves out as husband
and wife to their friends and family. To all appearances, they would have seemed a
married couple, and indeed, they may very well have thought themselves to be each
other's spouse. But critically, Ms. Shushan and Mr. Cohen never participated in a
religious wedding through any religious authority recognized under Israeli law.
After her father's death, Diana Cohen filed a petition for intestate
administration of Mr. Cohen's Florida assets, naming Mr. Cohen's six children as the
only intestate heirs. Ms. Shushan responded that under Israeli law, she 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,2 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.
2
The litigants, as well as their testifying experts, referred to Ms. Shushan's
domestic relationship with the decedent alternatively as "common law spouse," "reputed
spouse," or a "spouse known in public." We suspect the differing nomenclature simply
reflects the vagary inherent when trying to translate a Hebrew legal expression that
apparently has no precise analog in the English language or in Anglo-American
jurisprudence. For purposes of this opinion, we choose the term "reputed spouse" for
no other reason than to avoid confusion between "common law spouse" and common
law marriage—an equivalency that was expressly disclaimed by both experts who
opined in the proceedings below.
-3-
This discrete point of legal interpretation—what is a reputed spouse—
became the focal point of the two-day trial held before the probate court in March 2015.
Ms. Cohen and Ms. Shushan each called an Israeli family law attorney to provide expert
testimony on the subject of reputed spouses under Israel's family law. The experts did
not recite the precise code or statutory provision from which they drew their respective
opinions, nor did the parties proffer an interpretation of an Israeli legal text for the
probate court's consideration; rather, the testifying attorneys each opined as to the
general state of Israel's domestic relations law, how that law has evolved over time, and
what the status of a reputed spouse entails under Israeli law. On those points, their
opinions were entirely consonant.
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 . . . ." (Emphasis added.)
Referring to Ms. Cohen's expert's opinion summary, which described the legal
-4-
relationship as that of a reputed spouse, she clarified, and emphasized, this point even
further:
I think we use different phrases to describe the same
situation, because we didn't allege that there is common law
marriage under the Israeli law, but the common law spouse
is exactly like common law marriage in the United States,
and Known in Public is translated from Hebrew. It doesn't
have any meaning in English, as far as I know.
. . . Known in public is a translation from the Hebrew
phrase which means common law spouse, and if I can say
that the difference between your world and ours is
unbelievable, because in Israel the religious law does
everything in divorce and in family court.
So we don't have—we cannot have common law
marriage. If I want to marry my spouse not under the
religious law, I am not entitled to . . . .
....
We do not marry in a civil way. So we live together
and the State recognizes, gives us all the rights, and many,
many years of legislation in Israel is common law spouse
and now, in this date, if somebody comes to me and asks
me if it is better to be married, if a married woman has more
right, I tell her no.
Common law spouse has the same right as married
woman in Israel. It is very different than a way you cannot
understand it, but this is our situation in Israel, for the Jewish
people anyway.
(Emphasis added.)
Amir Tytunovich testified as an expert for Ms. Cohen. His opinion echoed
Ms. Dyan's with respect to the distinction between married spouses and reputed
spouses under Israeli law:
Q. In Israel, what is a reputed spouse?
-5-
A. A reputed spouse—in Israel, when we translate the
words from Hebrew, it is Known in Public. Reputed spouse
is about the same thing. It means that a man and a woman
are living together, sharing a house, and seem to act as if
they are married, but they are not.
Q. Does Israel recognize a reputed spouse arrangement
as a marriage?
A. No, it has nothing to do with marriage. The answer is
no.
Q. Does Israel recognize common law marriages?
A. No, in Israel there is only one kind of marriage, and
those are the religious marriages by the religious authorities.
There is no other way to get married in Israel other than
religious marriage. . . .
Mr. Tytunovich added that reputed spouses need not formally divorce if they ever
separate: "Since they are not married, they can separate whenever they like. They
don't have to get divorced."
After hearing legal arguments from counsel, the probate court entered its
Order Determining Beneficiaries on September 11, 2015, in which it determined that
Ms. Shushan was the late Mr. Cohen's surviving spouse under section 731.102. In its
examination of Israeli law, the probate court's order provided a thorough consideration
of the historic development and scholarly commentary surrounding the reputed spousal
relationship in Israel. Drawing societal concerns together with the array of rights the
reputed spouse relationship provides, the probate court concluded:
This [c]ourt finds the arrangement of Israeli reputed spouses
to exceed that of mere circumstance. For many spouses, it
is a conscious choice that represents a desire to eschew the
trappings of religious marriage. For others, it is a still
conscious choice, but one that represents a desire to have a
committed relationship despite rabbinical restrictions. . . .
However, the State of Israel has no civil marriage institution,
-6-
but has enacted laws regarding the rights of reputed
spouses that are as comprehensive as the rights of
religiously married spouses.
Accordingly, this [c]ourt finds Israeli reputed spouses
to be "a legal union between one man and one woman as
husband and wife." Because Florida will recognize
marriages from other jurisdictions and because a marriage is
simply a "legal union," this [c]ourt finds that Mali [Shushan],
the reputed spouse of the Decedent, was engaged in a
"legal union" with the Decedent within the meaning of
section 741.212(3), Florida Statutes. Mali [Shushan] is
therefore a surviving spouse and is entitled to take part of
the intestate estate pursuant to section 732.102, Florida
Statutes.
For the reasons we will explain below, that conclusion was an erroneous
application of the law.
II.
At the outset, there arises something of a question about the scope of our
review. Ordinarily, a lower court's application of a foreign jurisdiction's law is subject to
de novo review on appeal, see, e.g., Kramer v. von Mitschke-Collande, 5 So. 3d 689,
690 (Fla. 3d DCA 2008) (reviewing a trial court's application of Swiss law de novo),
because the court of original jurisdiction enjoys no superior vantage over the reviewing
court concerning the application of law, cf. Transportes Aereos Nacionales, S.A. v. De
Brenes,
625 So. 2d 4, 6 (Fla. 3d DCA 1993) (noting that when reviewing a trial court's
application of foreign law de novo, "appellate courts are not limited to matters raised by
the parties, but are encouraged to take an active role in ascertaining foreign law" (citing
Twohy v. First Nat'l Bank of Chicago,
758 F.2d 1185, 1192 (7th Cir. 1985) ("[T]rial and
appellate courts are urged to research and analyze foreign law independently."))).
Here, however, our record does not include any Israeli legal text or published decisional
-7-
law to construe but rather the testimony of two experts about the meaning of Israeli
marital law. Ms. Shushan suggests we categorize the probate court's ruling from this
testimony as if it were an underlying factual determination, an issue we should review
for competent, substantial evidence. Cf. In re Estate of Murphy, 184 So. 3d 1221, 1227
(Fla. 2d DCA 2016) ("Whether or to what extent the predicate facts giving rise to a legal
presumption or its rebuttal were established is an issue of fact, which we review for
competent, substantial evidence." (citing Conahan v. State, 118 So. 3d 718, 727 (Fla.
2013))). A close reading of the probate court's order satisfies us that the court's
decision was not an evidentiary or credibility resolution between two experts' conflicting
interpretations of Israeli law. Cf. Transportes Aereos Nacionales, S.A.,
625 So. 2d at 6
n.2 (applying de novo review to trial court's interpretation of the Code of Nicaragua and
distinguishing the Third District's prior decision in Guelman v. De Guelman,
453 So. 2d
1159, 1160 (Fla. 3d DCA 1984), because "[i]n Guelman the correct interpretation to be
given the foreign law was litigated as a question of fact"). Indeed, on the salient point of
whether a reputed spouse constitutes a marriage relationship under Israeli law, there
was no conflict between the opinions of these two experts. The probate court's ruling,
like the parties' advocacy on appeal, revolves around the legal significance that ought to
be drawn from a reputed spouse relationship for purposes of Florida's intestacy law.
Such a determination is, at its core, one of legal analysis applied to undisputed facts
that we will review de novo. See Aills v. Boemi,
29 So. 3d 1105, 1108 (Fla. 2010)
("Because this is a question of law arising from undisputed facts, the standard of review
is de novo." (citing Kirton v. Fields, 997 So. 2d 349, 352 (Fla. 2008))).
-8-
III.
Section 732.102 of the Florida Statutes provides an intestate share of a
Florida estate to a "surviving spouse." The statute's term, "spouse," holds a plain and
ordinary meaning: a spouse is a person who has entered into a marital relationship with
another. See Adams v. Howertown, 673 F.2d 1036, 1040 (9th Cir. 1982) (abrogated on
other grounds by Obergefell v. Hodges,
135 S. Ct. 2584, 2604-05 (2015)) ("The term
'spouse' commonly refers to one of the parties in a marital relationship . . . ."); Spouse,
Black's Law Dictionary (10th ed. 2014) ("One's husband or wife by lawful marriage; a
married person."). That relationship—marriage—is one that is wholly unique in human
society and has long been distinguished from any other form of domestic relationship.
See, e.g., Obergefell, 135 S. Ct. at 2599 (observing that "the right to marry is
fundamental because it supports a two-person union unlike any other in its importance
to the committed individuals" (emphasis added)); Kerrigan v. Comm'r of Pub. Health,
957 A.2d 407, 418 n.15 (Conn. 2008) ("The institution of marriage is unique: it is a
distinct mode of association and commitment with long traditions of historical, social,
and personal meaning." (quoting R. Dworkin, Three Questions for America, N.Y. Review
of Books, Sept. 21, 2006, at 24, 30)). Marriage confers a panoply of legal rights. But
those rights emanate from the establishment of the marital relationship; they do not
create it. See Nat'l Pride at Work, Inc. v. Governor of Mich., 732 N.W.2d 139, 150
(Mich. Ct. App. 2007) ("Marriage triggers legal rights, responsibilities, and benefits . . . ."
(emphasis added)); Tostado v. Tostado, 151 P.3d 1060, 1063 (Wash. Ct. App. 2007)
("Marriage is a personal, legal status, which is distinguishable 'from the rights and
privileges that are incidents of a marriage.' " (quoting State v. Rivera, 977 P.2d 1247
-9-
(Wash. Ct. App. 1999))); Baehr v. Lewin, 852 P.2d 44, 58 (Haw. 1993) ("[M]arriage is a
state-conferred legal status, the existence of which gives rise to rights and benefits
reserved exclusively to that particular relationship." (emphasis added)). Recognizing
the societal importance and personal significance of marriage, the law strives to keep as
clear as possible what the points of entry into a marital relationship are so that the
public can readily discern who has entered into a marriage union and who has not. See
Williams v. North Carolina, 317 U.S. 287, 298 (1942) ("Each state as a sovereign has a
rightful and legitimate concern in the marital status of persons domiciled within its
borders."); see also Brian H. Bix, State of the Union: The State's Interest in the Marital
Status of Their Citizens, 55 U. Miami L. Rev. 1, 6 (Oct. 2000) ("Without an official way to
designate a committed partner, the legal system would often be hard-pressed to
distinguish a life-partner from an occasional, casual companion."). The case at bar
poses the discrete question of whether Ms. Shushan's reputed spouse relationship with
the decedent was a marriage.
"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).3 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).
3
Neither party argued below or on appeal that recognition of an Israeli
reputed spousal relationship as marriage would offend any public policy of the State of
Florida in any way. See Johnson, 571 So. 2d at 542 ("Florida law does not have to give
full faith and credit to another state's law when it is repugnant to the interest of
Florida.").
- 10 -
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,
429 S.E.2d 626, 629 (Va. App. Ct. 1993)
("A marriage that is void where it was celebrated is void everywhere." (citing Spradlin v.
State Comp. Comm'r, 113 S.E. 2d 832, 834 (W. Va. 1960))). We must look, then, to the
evidence presented below as to whether reputed spouses are considered married under
Israeli law.
That evidence was undisputed. The State of Israel limits marriage within
its borders to religious marriages created through recognized religious authorities. Both
of the experts who testified, Ms. Dyan and Mr. Tytunovich, affirmed this central point.
And the probate court recognized in its order that "the state of Israel has no civil
marriage institution." Thus, in Israel there is one, and only one, avenue to form a
marriage: through a recognized religious authority. Cf. Zvi Triger, Freedom from
Religion in Israel: Civil Marriages and Cohabitation of Jews Enter the Rabbinical
Courts, 27 Isr. Stud. Rev. 1, 5 (2012) ("[T]here is no formal civil marriage option in
Israel. There is one commonly practiced way of avoiding the civil marriage ban (and
thus the monopoly of religion over marriage), which is to get married abroad in countries
that allow civil marriage for non-citizens and non-residents."); Brett G. Scharffs and
Suzanne Disparte, Comparative Models for Transitioning from Religious to Civil
Marriage Systems, 12 J. L. & Fam. Stud. 409, 411 (2010) (summarizing the historic
- 11 -
roots of religious family law in Israel and observing that in modern Israel "[t]he laws of
marriage and divorce are governed exclusively by religious law," while "most other
aspects of family law (including child custody, adoption, property and inheritance) are
regulated by civil law"). 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.4
The error within the probate court's analysis appears to have proceeded
from its attempt to apply a portion of the text of section 741.212(3), Florida Statutes
(2013), Florida's statutory prohibition against same-sex marriage, to the definitional
controversy before it. Within this statute's ban against the recognition of same-sex
4
In so holding, we have not ignored the institution of common law
marriage, a form of marriage that exists in many jurisdictions that our dissenting
colleague believes could be likened to the reputed spousal relationship. If only there
were common law marriage in Israel, we could readily agree with much of our
colleague's argument. But there isn't. So we cannot credibly characterize the Israeli
reputed spousal relationship within a legal institution that is not recognized and does not
exist in Israel. See, e.g., Betermariam, 48 So. 3d at 124 (applying the principle that the
validity of a marriage is determined by the law of the place where it is contracted; "[t]he
issue of whether the parties' religious wedding ceremony amounted to a valid marriage
is determined in accordance with the law of the place where the putative marriage
occurred" (citing Preure v. Benhadj-Djillali,
15 So. 3d 877, 877 (Fla. 5th DCA 2009))).
Nor does the legal presumption of a marriage's validity the dissent cites carry the
argument any farther, because the evidence of cohabitation before the probate court in
this case would, at most, give rise to a presumptively valid common law marriage—
which, again, is not a recognized form of marriage under Israeli law. Cf. In re Estate of
Sterile,
902 So. 2d 915, 919 n.4 (Fla. 2d DCA 2005) (observing that "[i]n the reported
Florida cases, evidence relating to general repute and cohabitation as husband and wife
has generally been relied upon to establish a common law—rather than a ceremonial—
marriage"). If we have limited our inquiry into "ceremonial" or "formal" marriages, then,
it is only because Israel's marital law has set that limited boundary for us.
- 12 -
marriages—a ban that has effectively been ruled unconstitutional and has nothing to do
with this controversy5—one could, with selective focus, construe a seemingly broad,
even sweeping pronouncement about the kinds of relationships Florida courts must
recognize as marriage: "For purposes of interpreting any state statute or rule, the term
'marriage' means only a legal union between one man and one woman as husband and
wife, and the term 'spouse' applies only to a member of such a union." § 741.212(3)
(emphasis added). Reading "legal union" broadly, and employing "only" in a more
colloquial sense—as connoting "simply"—the probate court, paradoxically, construed a
statute originally enacted to limit Florida's recognition of certain types of marriages as
one that requires recognition of "any legal union" whatsoever as marriage. As the
probate court put it, "a marriage is simply a 'legal union.' "
Such a reading was erroneous, to the extent any part of section
741.212(3) remains effective, for two reasons. First, the probate court applied only a
fragment of a sentence within the statute and effectively ignored the rest of the
sentence's plain language. See Johnson v. Feder, 485 So. 2d 409, 411 (Fla. 1986)
("Statutory interpretations that render statutory provisions superfluous 'are, and should
be, disfavored.' " (quoting Patagonia Corp. v. Bd. of Governors of the Fed. Reserve
Sys., 517 F.2d 803, 813 (9th Cir. 1975))); Lewis v. City of Tampa,
64 So. 3d 143, 145
5
See Obergefell, 135 S. Ct. 2584. The probate court in its order noted that
Obergefell invalidated portions of section 741.212(3) but that any constitutional
infirmities within the statute were not relevant to this case. We would agree with the
probate court's assessment, but our holding today rests principally on applying the plain
meaning of "spouse" within section 732.102. We have not been asked, and so we will
not attempt, to definitively reconstruct the constitutionally nonoffensive provisions of
section 741.212(3). We address section 741.212(3) only to point out where the probate
court erred in its construction of that statute, and with the assumption those portions we
have addressed may remain constitutionally valid.
- 13 -
(Fla. 2d DCA 2011) ("This court will not interpret statutes so as to render portions of
them meaningless when a reading that gives meaning to all portions is possible."
(quoting Stratton v. Sarasota County, 983 So. 2d 51, 55 (Fla. 2d DCA 2008))). Section
741.212(3) directs Florida courts to recognize as marriages—and restricts the term
"spouse" to mean—those legal unions that have conferred a spousal status "as
husband and wife." To be a husband or wife, or a spouse, as we have already
discussed, plainly connotes a marital relationship; section 741.212(3), when read as a
whole, would simply reaffirm that proposition.
Secondly, as a matter of statutory construction, the term "only," although
capable of varying meanings depending on the context of its use as an adverb or an
adjective, ordinarily imposes some limiting function over the term or phrase it modifies.
Cf. License Acquisitions, LLC v. Debary Real Estate Holdings, LLC, 155 So. 3d 1137,
1145-46 (Fla. 2014) (summarizing various dictionary and thesaurus definitions of "only"
when used as an adjective, including "solely," "precisely," "for no other purpose";
"[r]eferences to certain uses of 'only' in other statutory provisions suggest that the word
has been used by the [l]egislature to indicate a maximum amount"). The statute's use
of "only," then, signals a clear intent to restrict the definitional scope of relationships that
may be recognized as marriages to those that are, in fact, marriages. The probate
court's construction, however, broadens that recognition to all of a foreign jurisdiction's
domestic relationships as if they were marriages (so long as they constituted some kind
of a legal union), even if that jurisdiction would hold they were not.
We find further support for our application of section 741.212(3) in the
Fourth District's appraisal of Colombian marital law in American Airlines v. Mejia, 766
- 14 -
So. 2d 305 (Fla. 4th DCA 2000). In Mejia, a Columbian flight attendant died in a crash
of an American Airlines airplane. Id. at 306. The plaintiff sued American Airlines for
wrongful death, claiming that he was the flight attendant's surviving spouse as her
common law husband. Id. The plaintiff argued that while he and the decedent "never
participated in a formal, civil or religious ceremony of marriage[,] . . . they were entitled
under Colombian law to claim the status of 'Unión Marital de Hecho,' "6 which, the
plaintiff argued, was the equivalent of common law marriage in the United States. Id.
While the Mejia court acknowledged that Florida courts must respect a common law
marriage validly created in a jurisdiction that recognizes such marriages, id. at 307 n.5,
it concluded that Colombian law differentiated between marriage and unión marital de
hecho: "The principal difference for our purposes is that marriage is a solemn contract
dissoluble only by death or divorce, while an unión is an informal circumstance that may
be ended simply by one of the permanent companions marrying someone else." Id. at
309. To this end, the Mejia court quoted with approval to the Colombian Constitutional
Court's reasoning, "to maintain that between permanent companions there exists a
relationship identical to that which binds spouses is an assertion that would not hold up
to the slightest scrutiny." Id. (quoting Corte Constitucional [C.C.] [Constitutional Court],
mayo 31, 1994, Sentencia C-239/94, M.P. Jorge Arango Mejia, Gaceta de la Corte
Constitucional [G.C.C.] (Colom.)). We agree with the Mejia court's conclusion and find it
apt to the case at bar. The status of a reputed spouse relationship cannot be identical
to the status of a married spouse's relationship because, under Israeli law, reputed
6
"Marital Union in Fact." Mejia, 766 So. 2d at 306 n.2.
- 15 -
spouses are not married and can informally end their relationships at any time without
even seeking a divorce.
Our holding today also aligns with the New York Surrogate's Court's ruling
on this precise issue of Israeli marital law. In Matter of Jenkins, 133 Misc. 2d 420, 420-
21 (N.Y. Sur. 1986), the court was confronted with the question of whether the petitioner
had a claim to the decedent's estate as the decedent's surviving spouse. Like Ms.
Shushan, the petitioner in Jenkins argued that she and the decedent had entered into a
reputed spouse relationship in Israel.
Id. at 421. The Jenkins court examined two
Israeli statutes provided by the parties, which provided that individuals living together
"as husband and wife in a common household," become entitled to certain rights upon
the death of the other.
Id. (citing Succession Law, 5725-1965, §§ 55, 57(c) (Isr.)). The
Jenkins court found that the relationship described in the Israeli statutes provided by the
parties, and in other Israeli statutes generally, did "not create a state of marriage,
equivalent to a common-law marriage or a ceremonial marriage." Id. at 426. In so
concluding, the Jenkins court explained that although "[s]ome of these rights may be
similar to or the same as those of married couples . . . the conferring of these rights
does not in Israel give the parties the status of husband and wife." Id. (emphasis
added).
As the courts in Mejia and Jenkins recognized, marriage, 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
- 16 -
proximity, even near equivalency,7 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;
Mantano,
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.8 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.
7
For example, Ms. Shushan points out that the Israeli Inheritance
Registrar deemed her entitled to half of the decedent's property in Israel as Mr. Cohen's
reputed spouse. While that may be so, that disposition of property has no bearing on
the question of whether Ms. Shushan and Mr. Cohen were lawfully married, which is the
critical inquiry for purposes of applying Florida's intestacy law to Mr. Cohen's Florida
assets. See In re Estate of Salathe, 703 So. 2d 1167, 1169 (Fla. 2d DCA 1997)
("Unquestionably, Florida's intestacy laws apply to the inheritance of property located in
Florida.").
8
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.
- 17 -
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.
Reversed and remanded.
CASANUEVA, J., Concurs.
KHOUZAM, J., Dissents with opinion.
KHOUZAM, Judge, Dissenting.
I would affirm. Considering the presented expert testimony, the
presumption in favor of a valid marriage, and the recognition that Florida courts must
give common law marriages from other jurisdictions, I cannot say that the circuit court
erred in finding that a reputed spouse in Israel is the equivalent of a common law
spouse in the United States and that therefore Ms. Shushan was the decedent's
surviving spouse under section 732.102, Florida Statutes (2013).
The majority appears to require a specific foreign law conferring upon
common law spouses in that jurisdiction the status of marriage for that marriage to be
considered valid here. But I have been unable to locate any case that sets forth such a
- 18 -
rigid requirement. To the contrary, the Florida case law in this area focuses more
broadly on the functionality of the legal relationship in question as understood in the
foreign jurisdiction, analyzing the legal landscape as a whole. See, e.g., Am. Airlines,
Inc. v. Mejia, 766 So. 2d 305 (Fla. 4th DCA 2000) (comparing the rights and duties of
married couples and partners in a unión marital de hecho under Columbian law as a
whole in concluding that a unión is not the equivalent of a marriage). In my view, the
majority's myopic focus on the technical status of marriage misses the broader reality
that reputed spouse relationships and common law marriages are functionally
equivalent and reputed spouses, though not technically married, are also viewed under
Israeli law as if they were indeed married. To fully defer to Israel's authority to define
marriage within its own jurisdiction, this unique phenomenon must be recognized. The
circuit court's thorough, well-reasoned order did just that.
"[T]he validity of a marriage is to be determined by the law of the
jurisdiction where the marriage was entered into." Smith v. Anderson, 821 So. 2d 323,
325 (Fla. 2d DCA 2002) (citing Anderson v. Anderson,
577 So. 2d 658, 660 (Fla. 1st
DCA 1991)). And "a marriage valid according to law of foreign country will be
recognized as valid in [the] United States." Montano v. Montano,
520 So. 2d 52, 53
(Fla. 3d DCA 1988) (citing 52 Am. Jur. 2d Marriages § 84 (1970)). This is because,
under the principles of comity, the courts of one sovereign may give effect to the laws of
another sovereign out of mutual respect and in the interest of facilitating the orderly
administration of justice. 21 C.J.S. Courts § 304 (2016). Accordingly, "Florida has
traditionally approved of the sanctity of marriage, and the act of marriage, regardless of
- 19 -
where it is contracted." Johnson v. Lincoln Square Props., Inc., 571 So. 2d 541, 542
(Fla. 2d DCA 1990).
Florida recognizes and respects common law marriages from jurisdictions
where they are considered valid (though Florida no longer recognizes common law
marriages entered into within its own borders). Smith, 821 So. 2d at 325. As the
Florida Supreme Court explained when common law marriage was valid in the state,
Marriage is a contract founded upon the agreement of the
parties. When once formed, a relation is created between
the parties which they cannot change, and the rights and
obligations of which depend not upon their agreement but
upon statutory and common law. It is an institution of
society, regulated and controlled by public authority. The
two essentials of a valid marriage at common law are
capacity and mutual consent, and it is well settled that under
the common law the marriage relation may be formed by
words of present assent, per verba de praesenti, and without
the interposition of any person lawfully authorized to
solemnize marriages, or to join persons in marriage. The
parties may express the agreement by parol, they may
signify it by whatever ceremony their whim or their taste or
their religious belief may select; it is the agreement itself,
and not the form in which it is couched, which constitutes the
contract. The ceremony performed is evidence of a present
intention and agreement of the parties.
State ex rel. Foster v. Anders, 184 So. 515, 516 (Fla. 1938). Moreover:
Our adjudicated cases give to a common law marriage the
same dignity and recognition as is accorded to ceremonial
marriages and the point of clevage apparently is the method
of expressing consent. At the common law no formal
ceremony is essential to a valid marriage and an agreement
between parties per verba de praesenti to be husband and
wife constitute a valid marriage. A ceremonial marriage is
effectuated pursuant to a marriage license and marriage
ceremony conducted by a minister or authorized civil officer
in the presence of witnesses.
- 20 -
Budd v. J. Y. Gooch Co., 27 So. 2d 72, 74 (Fla. 1946). 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.
Id. "The
law of inheritance, and descent and distribution, dower and other property rights apply
alike to common law marriages and ceremonial marriages."
Id. 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.
By so holding, the majority has ignored the presumption in favor of a valid
marriage, which is one of the strongest—if not the strongest—legal presumptions in
existence. See In re Alcala's Estate, 188 So. 2d 903, 904 (Fla. 2d DCA 1966) ("The
establishment of a prima facie marriage springs into existence a presumption of
marriage—one of the strongest presumptions of the law."); see also Nat'l Pride At Work,
Inc. v. Governor of Mich., 732 N.W.2d 139, 150 (Mich. Ct. App. 2007), aff'd,
748 N.W.2d
524 (2008) (quoting Hess v. Pettigrew,
247 N.W. 90 (1933)) ("The status of children,
preservation of the home, private morality, public decency, and the like afford ample
grounds for special treatment of marriage as a contract, by statute and decision. In
recognition of its public and social nature, courts have cast about it the protecting
- 21 -
mantle of presumptions, sustaining validity of marriage, said to be the strongest known
to the law."). This strong presumption is properly applied in analyzing whether a
couples' relationship qualifies as a common law marriage:
The "presumption" of the existence of a valid marriage,
recognized as one of the strongest of all legal presumptions,
arises out of the concern of all civilized societies over the
legitimacy of children, the descent and distribution of
property and the sanctity of marriage as the keystone of
Christian governments. But this presumption grows out of
long and continuous cohabitation, the establishment and
maintenance of a home and family, recognition by the public
generally and the friends and associates that the man and
woman are husband and wife. In the probate of estates, the
surviving spouse is not required to go to the courthouse with
her marriage license in hand to be recognized as the
surviving spouse. Nor does the law require evidence of
marriage when deeds are executed as husband and wife,
nor to establish that a child is the lawful heir of his father.
The law presumes in each and many other similar situations
that a valid marriage does exist and he who properly raises
such issue has a great burden to carry even some courts
have held of proving a negative. The strength of the
presumption increases with the lapse of time through which
the parties are cohabiting as husband and wife.
In re Marden's Estate, 355 So. 2d 121, 126 (Fla. 3d DCA 1978) (footnote omitted). This
presumption has even been applied to uphold a marriage from another country that was
found to have been void ab initio:
The presumption of validity of the marriage in the instant
case is a strong one, regardless of the dispute whether the
Mexican marriage was void ab initio. The parties cohabited
and held themselves out to family, friends, and to the public
as married for approximately thirty years, bore and raised
two children within this time, and held property as tenants by
entirety. At final hearing the husband testified that he had
honestly believed and reasonably relied on the validity of the
marriage to the wife for some thirty years. There was no
allegation by either party that the marriage was void until the
wife made her claim for alimony in the dissolution
proceedings. For these reasons the husband was equitably
- 22 -
estopped from raising the validity of the marriage, and
annulment was improper.
Lambertini v. Lambertini, 655 So. 2d 142, 143 (Fla. 3d DCA 1995) (citations omitted).
So "[t]he law presumes that a valid marriage exists and the person that challenges the
validity of a marriage carries a heavy burden." Johnson,
571 So. 2d at 542.
There is no dispute on appeal that Ms. Shushan and Mr. Cohen were
reputed spouses in Israel—the record contains the Israeli family court's order naming
Ms. Shushan as Mr. Cohen's reputed spouse and, accordingly, determining that she
was entitled to inherit as his surviving spouse. As the majority acknowledges, Ms.
Shushan and Mr. Cohen lived together as a couple for approximately twenty-three years
(from 1990 until Mr. Cohen passed away in 2013), had four children together, ran Israeli
businesses together as partners, unwaveringly held themselves out as husband and
wife to their friends and family, and by all appearances thought themselves to be one
another's spouses.
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. See Phillips v. Phillips, 215 So. 2d 83, 84 (Fla. 3d DCA 1968) ("A
common law marriage generally is established by evidence of cohabitation and repute,
and of an agreement between the parties per verba de praesenti to be husband and
wife."). Neither is formed by governmental authority but rather is only recognized by the
government after the fact.
- 23 -
The rights that accompany that government recognition show that the
relationships are functionally equivalent as well. "Marriage triggers legal rights,
responsibilities, and benefits not afforded to unmarried persons . . . ." Nat'l Pride At
Work, 732 N.W.2d at 150 (emphasis added). The parties' experts agreed that in Israel
reputed spouses have legal rights practically identical to married couples and that those
rights have been increasing in recent years. For example, Ms. Cohen's expert agreed
that a reputed spouse is entitled to alimony, property rights, inheritance rights, as well
as pension and social security benefits. He agreed that both married couples and
reputed spouses may resolve disputes in the same family court. Ms. Shushan's expert
explained: "now, in this date, if somebody comes to me and asks me if it is better to be
married, if a married woman has more right, I tell her no. Common law spouse has the
same right as married woman in Israel." The circuit court further elucidated:
Recognizing the needs of these couples, the Knesset
(the Israeli legislative body) enacted a number of laws that
provided rights and obligations to reputed spouses that
resemble the rights and obligations of formally married
couples in Israel and Florida, including property division and
support if the relationship dissolves as well as property,
social security benefits, and pensions in the event of the
death of one of the spouses. [Shahar Lifshitz, A Potential
Lesson from the Israeli Experience for the American Same-Sex Marriage Debate, 22 BYU J. Pub. L. 359, 362-63
(2008)]. The Israeli Supreme Court has also played a part in
the development of case law in their area and has both
acknowledged, and in some cases, expanded the rights to
which reputed spouses are entitled. Id. In some ways, the
rights offered to reputed spouses appear equivalent to those
afforded to formally married spouses. Id. at 363.
To enforce these rights, reputed spouses use Israeli
family courts, which exist independently of the rabbinical
courts. Id. at 362.
- 24 -
Indeed, reputed spouses are sometimes even required to obtain a divorce under the
religious law to end their relationship, as the court specifically noted:
Both experts testified that divorce is not necessary
when reputed spouses decide to end their relationship;
however there have been instances where rabbinical courts
have imposed divorce on reputed spouses who have
separated despite the fact that the couple never formally
married in any ceremony, much less a religious one. [Zvi
Triger, Freedom From Religion in Israel: Civil Marriages and
Cohabitation of Jews Enter the Rabbinical Courts, 27 Isr.
Stud. Rev. 1, 10 (2012)].
It is true that the parties' experts agreed that there is no civil marriage in
Israel because marriage is governed by religious law. As the circuit court explained:
Israeli family law has an interesting background that
dates back to the Ottoman Empire's rule of what was then
called Palestine. [Triger, supra, at 2-3] Before its defeat by
the British in 1917, the Ottoman Empire allowed the various
religious groups within its territory to govern themselves with
regard to family law matters as these were seen as religious
issues. Id. The British Mandate, which ruled present-day
Israel from July 1922 until May 1948, also adopted this
format. Id. at 3. Similarly, after the State of Israel declared
its independence, a compromise with the Ultra-Orthodox
known as the status quo continued that tradition of allowing
religious courts to exercise jurisdiction over marriages and
divorces. Id. at 4. This system is still in place today, which
means that for Israeli Jews, rabbinical courts offer the only
pathway to formal marriages. Id. at 5. Indeed, the Israeli
government has not established formal civil marriages. See
id.
Religious marriages performed under halachic or
kosher standards are often unobtainable or undesirable for
Israeli couples for a number of reasons. For example, a
cohen or "member of a priestly caste" may not marry
divorcees; women whose husbands disappear or perish in
wars are barred from remarriage; and lastly, rabbinical
courts forbid intermarriage. Id. at 8-9. Another reason
couples may wish to avoid religious marriage is that the
process of dissolving these marriages can be quite difficult
and can subject women in particular to abuse, extortion, and
- 25 -
exploitation at the hands of their husbands whose
cooperation is needed to obtain a religious divorce. Id. at
10.
For these aforementioned reasons, many couples
have chosen to cohabitate and establish families without
going through the process of obtaining religious marriages.
Id. 4 and 8. These couples are known as [yedu'im be-tzibur]
or "reputed" spouses or "known in public" spouses, and this
arrangement is viewed in Israel as "a kind or secular
marriage." Id.; [Lifshitz, supra, at 374].
Against this backdrop, Ms. Cohen's expert concluded that the status of reputed spouse
"has nothing to do with marriage." But Ms. Shushan's expert clarified that the reputed
spouse phenomenon has developed in response to the strict, religious marriage laws
and has become the equivalent of common law marriage in the United States:
I think we use different phrases to describe the same
situation, because we didn't allege that there is common law
marriage under the Israeli law, but the common law spouse
is exactly like common law marriage in the United States,
and Known in Public is translated from Hebrew.
(Emphasis added.) Ms. Shushan's expert further explained that many couples make
the decision to be reputed spouses only because they cannot marry under the religious
law:
So what I'm related to by saying common law spouse
is exactly . . . like Known in Public. Known in public is a
translation from the Hebrew phrase which means common
law spouse, and if I can say that the difference between your
world and ours is unbelievable, because in Israel the
religious law does everything in divorce and in family court.
So we don't have—we cannot have common law
marriage. If I want to marry my spouse not under the
religious law, I am not entitled to, so we are common law
spouse, and believe me, many of the young people and
many, many couples in Israel don't want to marry under the
religious law because this is very, very old. It is hundreds of
- 26 -
years old, and you look to the rabbinical court, which is not
very—is nothing like family court. It is very, very different.
Also, of course, Jewish, their religious has been
(inaudible) it and having to decide about your future. People
in Israel don't want to engage in this way, but we have no
other option. So we live together under the same roof and
live as common law spouse, and this is why the State
recognized because we don't have any other choice.
We do not marry in a civil way. So we live together
and the State recognizes, gives us all the rights, and many,
many years of legislation in Israel is common law spouse[.]
(Emphasis added.) Mr. Cohen and Ms. Shushan were one such couple: they became
reputed spouses because they could not get married under the religious law.
I disagree with the majority's assessment that this court must apply a de
novo standard of review.9 The correct interpretation of Israeli law was litigated as a
question of fact. And considering the totality of the two experts' testimony, it is clear
that, even though they agreed on the content of the law as it exists in Israel, they
sharply disagreed on its application—Ms. Cohen's expert contended that marriage in
Israel is strictly limited to religious marriage, while Ms. Shushan's expert maintained
that, precisely because religious marriage in Israel is so strict and limits many from
marrying, the reputed spouse phenomenon has become an equivalent of common law
marriage that is recognized in Israel. Because the experts' conflicting interpretations
created a question of fact, an abuse of discretion standard is appropriate and we should
9
To be clear, even assuming for argument's sake that a de novo standard
applies, I could not say that the trial court erred. Considering the testimony that the
reputed spouse relationship has become the equivalent of common law marriage, the
strong presumption in favor of finding a valid marriage, and the deference Florida courts
must give common law marriages from other jurisdictions, I believe the circuit court's
decision was correct.
- 27 -
defer to the trial court's findings as long as they are supported by competent, substantial
evidence. See Hamil v. State, 106 So. 3d 495, 498 (Fla. 4th DCA 2013) ("It is 'within
the trial judge's province, when acting as trier of both fact and law, to determine the
weight of the evidence, evaluate conflicting evidence, and determine the credibility of
the witnesses, and such determinations may not be disturbed on appeal unless shown
to be unsupported by competent and substantial evidence, or to constitute an abuse of
discretion.' " (quoting Jockey Club, Inc. v. Stern, 408 So. 2d 854, 855 (Fla. 3d DCA
1982))).
Moreover, "the majority view seems to be that the question as to the
foreign law, including the rule prescribed by it, is to be determined as one of fact by the
jury, or by the court sitting as a jury, when proof of the foreign law is made in whole or in
part by the testimony of witnesses." 34 A.L.R. 1447(II)(a) (Originally published in 1925).
This view appears to apply in Florida, as the Third District held in Guelman v. de
Guelman, that "[a] trial court will be sustained in its interpretation of the law of a foreign
country if its interpretation is consistent with that given by an expert on the law of such
foreign jurisdiction, even though such expert opinion may be in dispute."
453 So. 2d
1159, 1160 (Fla. 3d DCA 1984).
The majority opinion relies on the Third District's decision in Transportes
Aereos Nacionales, S.A. v. De Brenes for the proposition a de novo standard of review
applies to questions of foreign law. 625 So. 2d 4 (Fla. 3d DCA 1993). But that case is
distinguishable from this one. In Transportes Aereos Nacionales, the issue of foreign
law had been presented as a question of law and the trial court had taken judicial notice
of the foreign law. See
id. at 5-6. The Third District acknowledged that questions of
- 28 -
foreign law are sometimes litigated as questions of fact, stating that '[i]n Guelman the
correct interpretation to be given the foreign law was litigated as a question of fact,"
whereas in Transportes Aereos Nacionales "the court was requested, before trial, to
take judicial notice of, and to apply the Nicaraguan Code, as a matter of law." Id. at 6
n.2.
Here, as already noted, the question of Israeli law was litigated as a
question of fact. And the trial court did not take judicial notice of any specific Israeli law
in order to apply it as a matter of law. Under these circumstances, this court should not
cite to sources outside the record to independently analyze Israeli law, as the majority
suggests. Even though "[u]nder section 90.202(4), Florida Statutes (1991), a court may
take judicial notice of foreign law," id. at 5, any time judicial notice is taken the
procedures set forth under section 90.204, Florida Statutes, must be followed. See
Maradie v. Maradie,
680 So. 2d 538, 540 (Fla. 1st DCA 1996) (reversing in part
because the trial court failed to follow the statutory procedure required for judicial notice
under section 90.204). Because these procedures were not followed in this case, it
would be inappropriate at this juncture to take judicial notice or treat the circuit court's
ruling as if it had taken judicial notice below. See
id. This court should only consider
evidence that was before the trial court. See
id. (quoting Hillsborough Cty. Bd. of Cty.
Comm. v. Pub. Emps. Relations Comm.,
424 So. 2d 132, 134 (Fla. 1st DCA 1982))
("[T]he function of an appellate court is to determine whether the lower tribunal
committed error based on the issues and evidence before it."); see also 36 Am. Jur.
Proof of Facts 2d 441, §7 (Originally published in 1983) ("Statutes in a few states permit
the courts to take judicial notice of the law of a foreign country, but in most jurisdictions
- 29 -
the courts will not take judicial notice of the law of another country, whether written or
unwritten, and therefore the foreign law must be pleaded and proved [like other facts]."
(footnote omitted)).
Finally, I would note that the majority's reliance on American Airlines, Inc.
v. Mejia, 766 So. 2d 305 (Fla. 4th DCA 2000), and Matter of Jenkins,
133 Misc.2d 420,
420-21 (N.Y. Sur. 1986), is misplaced. The New York Surrogate's Court's 1986
decision in Matter of Jenkins is not binding on this court, and I do not find it persuasive.
The Jenkins court concluded that the Israeli Succession Law neither describes nor
creates the equivalent of a common law marriage. But the decision's applicability is
limited because, as the circuit court noted, we must "look to the present incarnation of
the Israeli reputed spouse doctrine." The expert testimony given in the present matter
indicates that in the thirty years since Jenkins was decided, reputed spouse
relationships have become more common and have gained legal recognition to the
point that they have virtually the same rights as married couples.
The Fourth District's decision in Mejia is distinguishable from the instant
case because there is an "immense gap" between the rights and obligations of the
parties to a unión marital de hecho and those to a marriage under Columbian law. See
Mejia, 766 So. 2d at 309. For example, a surviving member of a unión has no right to
an inheritance, unlike a surviving spouse in a marriage.
Id. at 308. In contrast, the
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. Additionally, in Mejia
the decedent was arguably still married to another man at the time she became a part of
- 30 -
the unión. Id. at 306. Not being married to anyone else is a requirement for reputed
spouses, and neither Ms. Shushan nor Mr. Cohen was married to anyone else.
The Mejia court also relied heavily on the language of section 741.212,
Florida Statutes (1999), in determining that the status of unión under Columbian law
was not the equivalent of a common law marriage. As the majority acknowledges, this
statute—intended to prohibit same-sex marriage—has been held unconstitutional and
has nothing to do with the current controversy. See Brenner v. Scott, 4:14CV107-
RH/CAS, 2016 WL 3561754 (N.D. Fla. Mar. 30 2016); see also Obergefell v. Hodges,
135 S. Ct. 2584 (2015). To the extent that the Fourth District relied on this statute in
Mejia, the opinion is no longer good law.
It was in response to the parties' heavy reliance on the reasoning set forth
in Mejia that the circuit court tracked section 741.212's language in its order, stating that
"marriage is simply a 'legal union.' " The court also acknowledged the section's
constitutional infirmities. Taken in context, it is clear that the circuit court did not intend
to embrace an expanded definition of marriage by tracking the language of section
741.212, which limited the definition of marriage to heterosexual couples. Rather, it was
simply addressing the parties' arguments that centered on this statutory section and the
analysis of it found in Mejia. Accordingly, I believe the majority has overstated the
significance of the circuit court order's brief reference to section 741.212.
Because, in my view, the circuit court properly found that a reputed
spouse in Israel is the equivalent of a common law spouse in the United States and thus
properly determined that Ms. Shushan was the decedent's surviving spouse under
section 732.102, I would affirm.
- 31 -
