Cohen v. Shushan

• Decision Date: 15 March 2017
• Docket Number: Case No. 2D15–4629
• Citation: 212 So.3d 1113
• Parties: Diana COHEN, Appellant, v. 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.
• Court: Florida District Court of Appeals

212 So.3d 1113

Diana COHEN, Appellant,

v.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.

Case No. 2D15–4629

District Court of Appeal of Florida, Second District.

Opinion filed March 15, 2017.

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 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.

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 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?

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, 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),...