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Can a Surviving Unmarried Partner Assert Any Rights in a Florida Probate Estate?


Florida law confers a number of legal rights on the surviving spouse of a deceased individual. For example, a surviving spouse has priority to be named personal representative of the deceased spouse’s estate, assuming there is no will naming someone else to serve in that role. And even when there is a will, the surviving spouse also has the right to claim an elective share of the deceased spouse’s estate unless they expressly waived such rights before or after the other spouse’s death.

But all of these rights assume the parties were lawfully married. In general, Florida law does not confer any special rights on unmarried partners. Nor does Florida recognize “common law” marriages within the state, although it will recognize such unions created under the laws of another state. And while Florida courts will recognize marriages lawfully performed in another state or country, judges in this state will not second-guess or rewrite another jurisdiction’s laws to confer marital status within Florida.

Florida Court Refused to Recognize “Common Law” Israeli Marriage

To explain what we mean by this, consider this 2017 decision from the Florida Second District Court of Appeals, Cohen v. Shushan. This case involved a man and a woman who lived together for 23 years and had four children together. The woman was previously married in Israel. She divorced her husband in 1985 and moved to Florida. Five years later, she started her relationship with her new partner, which ended with his death in 2013.

At the time of the man’s death, the couple had lived together in Israel. Unlike the United States, Israel does not recognize civil marriages. A marriage must be performed under a religious authority. The man and woman here never participated in any religious ceremony. Nevertheless, after the man died, the woman claimed she was his “common law” spouse under Israeli law and sought to enforce her elective share rights under Florida law.

Although the probate court agreed the woman should be treated as the man’s surviving spouse, the Second District disagreed. It held that under Israeli law, only religious marriages were valid. There was no such thing as civil or common law marriage in Israel. As such, the woman could not claim the legal status of “spouse” in a Florida probate proceeding.

Contact Florida Probate Litigation Lawyer Mark Manceri Today

Of course, even if a couple is not legally married, they can still create estate planning documents that recognize their relationship with one another. An unmarried couple may, for instance, execute wills naming one another as executors or jointly own property with survivorship rights. Likewise, an unmarried couple may jointly create a revocable trust so they can pass their property to one another without the need for probate.

If you are involved in a legal dispute over a loved one’s estate, it is best to seek out competent legal advice from an experienced Pompano Beach estate and trust litigation lawyer. Contact the offices of Mark R. Manceri, P.A., at 954-491-7099 today to schedule a consultation.



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