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. 
- 2 -

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 

 

 1Ms. Rana passed away in 2000, predeceasing Mr. Cohen. 
- 3 -

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. 

 

 2The 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.
- 4 -

 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 
- 5 -

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? 
- 6 -

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,
- 7 -

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 
- 8 -

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))). 
- 9 -

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 
- 10 -

(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). 

 

 3Neither 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."). 
- 11 -

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 
- 12 -

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 

 4In 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. 
- 13 -

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 

 

 5See 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. 
- 14 -

(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 
- 15 -

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. 
- 16 -

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 
- 17 -

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. 

 

 7For 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."). 

 8Although 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. 
- 18 -

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 
- 19 -

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 
- 20 -

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. 
- 21 -

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 
- 22 -

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 
- 23 -

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. 
- 24 -

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 SameSex 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. 
- 25 -

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 
- 26 -

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 
- 27 -

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 

 9To 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. 
- 28 -

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 
- 29 -

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 
- 30 -

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 
- 31 -

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.