Cohen v. Shushan
2017 Fla. App. LEXIS 3430
| Fla. Dist. Ct. App. | 2017Background
- Ye-hezkel Cohen was religiously married (1981) to Tami Rana, divorced in 1985; he later cohabited with Mali Ben Shushan in Israel from ~1990 until his death in 2013 and they had four children together.
- Shushan was recognized by Israeli authorities and experts as Cohen’s "reputed spouse" (Hebrew: known in public), a legally protected domestic relationship in Israel conferring many rights (inheritance, social security, property/support remedies).
- Diana Cohen (decedent’s daughter) petitioned for intestate administration of Cohen’s Florida assets; Shushan claimed a surviving-spouse share under Fla. Stat. §732.102 as Cohen’s spouse.
- Probate court found Israeli reputed-spouse status functionally equivalent to marriage and awarded Shushan surviving-spouse rights under Florida law; Diana appealed.
- The Florida appellate majority reviewed de novo whether a reputed-spouse relationship under Israeli law constitutes a marriage for purposes of Florida intestacy law and concluded it does not; it reversed the probate court.
Issues
| Issue | Plaintiff's Argument (Diana) | Defendant's Argument (Shushan) | Held |
|---|---|---|---|
| Whether an Israeli "reputed spouse" is a marriage under Israeli law | Reputed spouse is not a marriage under Israeli law; Israel limits marriage to religious ceremonies | Reputed spouse is functionally equivalent to common-law marriage and should be treated as spouse for inheritance | Reputed-spouse status is distinct from marriage under Israeli law and is not a marriage for Florida intestacy purposes (reversed) |
| Whether Florida must recognize that foreign status as a marriage for intestacy | Florida should not treat a foreign domestic-status that isn’t a marriage in its home jurisdiction as a marriage here | Florida comity and recognition of foreign common-law marriages support treating reputed spouses as surviving spouses | Florida recognizes foreign marriages valid where contracted; because Israel does not treat reputed spouses as married, Florida will not either |
| Proper construction/role of Fla. Stat. §741.212(3) in defining "marriage/spouse" | Section does not help Shushan; the plain meaning of "spouse" in §732.102 requires marital status | Probate court relied on §741.212(3) language to interpret "legal union" broadly | Court rejected the probate court’s selective reading of §741.212(3) and emphasized its limiting language restricting "spouse" to husband/wife unions |
| Standard of review for application of foreign law | Defer to probate court factual findings and experts; treat interpretation as mixed fact/law | De novo review appropriate for legal interpretation of foreign law applied to undisputed facts | Court applied de novo review, concluding legal question resolved against Shushan |
Key Cases Cited
- Obergefell v. Hodges, 135 S. Ct. 2584 (U.S. 2015) (marriage is a fundamental right and a unique two-person union)
- American Airlines, Inc. v. Mejia, 766 So.2d 305 (Fla. 4th DCA 2000) (foreign "unión marital de hecho" distinguished from marriage for legal status)
- Montano v. Montano, 520 So.2d 52 (Fla. 3d DCA 1988) (marriages valid under foreign law may be recognized under comity)
- Betemariam v. Said, 48 So.3d 121 (Fla. 4th DCA 2010) (marriage invalid where formation conditions under foreign law unmet)
- Kramer v. von Mitschke-Collande, 5 So.3d 689 (Fla. 3d DCA 2008) (appellate de novo review of trial court application of foreign law)
- Transportes Aereos Nacionales, S.A. v. De Brenes, 625 So.2d 4 (Fla. 3d DCA 1993) (discussing standards for judicial notice and review of foreign law)
- Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) ("spouse" commonly refers to parties in a marital relationship)