T.C. Memo. 2021-65

UNITED STATES TAX COURT

ESTATE OF SEMONE GROSSMAN, DECEASED, RICHARD M. FROME, 

PRELIMINARY EXECUTOR, Petitioner v. COMMISSIONER OF INTERNAL 

REVENUE, Respondent

Docket No. 9892-18. Filed May 27, 2021.

Decedent H and W1, who were both Jewish, married in N.Y. in 

1955. They separated in 1965, and H attempted to end the marriage 

by obtaining a unilateral divorce in Mexico. In 1967, H participated 

in a civil marriage ceremony with W2, who was not Jewish, in N.J. 

By 1974, H’s relationship with W2 had ended. In that year, W1

sued H and W2 in N.Y., seeking a declaratory judgment that the 

Mexican divorce was null and void and that she (W1) was still H’s 

lawful wife. W1 prevailed in the suit, but did not reconcile or cohabit 

with H thereafter.

By 1986, H became engaged to W3. H and W3, who was also

Jewish, decided to get married in the State of Israel. Before the 

wedding, H and W1 appeared before an orthodox rabbinical court in 

N.Y. to obtain a Jewish religious divorce. H and W3 presented 

evidence of the divorce to the Israeli authorities and were married in 

Israel in 1987.

Served 05/27/21
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After their marriage in Israel, H and W3 returned to N.Y. and 

lived there as husband and wife for 27 years, until H’s death in 2014. 

They had two children, filed joint Federal income tax returns, and 

shared a home and finances. During this time, W1 also lived in N.Y.,

saw H and W3 socially, and never challenged their marriage. W1

filed Federal income tax returns as single and made no statutory claim 

against H’s estate after his death.

When H died in 2014, he left the bulk of his estate to W3, and 

the estate claimed a corresponding marital deduction under I.R.C. 

sec. 2056(a). R denied the deduction and argues in a motion for 

partial summary judgment that H’s religious divorce from W1 was 

invalid under N.Y. law. Relying on N.Y. law, R argues that W1, 

rather than W3, was H’s surviving spouse when he died. 

H’s estate disagrees. In its competing motion for partial 

summary judgment, the estate maintains that N.Y. law is irrelevant to 

the dispute and that certain IRS revenue rulings and Federal caselaw

require the Court to look only to Israeli law to determine W3’s status

as surviving spouse. The estate further contends that, even if we 

accept R’s premise that N.Y. law provides the rule of decision, the 

estate prevails because N.Y. courts would respect H’s marriage to W3 

under their longstanding place of celebration test.

Held: For purposes of deciding the motions, we can assume (as 

R contends) that N.Y. law applies to determine W3’s marital status at 

the time of H’s death;

Held, further, W3’s Israeli marriage to H was valid under the 

place of celebration test that the N.Y. Court of Appeals has applied 

consistently for 140 years;

Held, further, W3 is H’s surviving spouse within the meaning 

of I.R.C. sec. 2056(a).

[*2]
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[*3] Megan E. Wernke, Christopher S. Rizek, and Beth Shapiro Kaufman, for 

petitioner.

Shawna A. Early, Michael J. De Matos, and Marc L. Caine, for respondent.

MEMORANDUM OPINION

TORO, Judge: Before the Court are competing motions for partial summary 

judgment. They present the question of whether Ziona Grossman is the “surviving 

spouse” of decedent Semone Grossman for purposes of the estate tax marital 

deduction provided by section 2056(a).

1

 Semone and Ziona, both Jewish and 

residents of New York, celebrated their marriage in the State of Israel in 1987

pursuant to that country’s laws after Semone obtained a religious divorce from his 

first wife Hilda, who was also Jewish and a New York resident. After celebrating 

their marriage, Semone and Ziona returned to New York, had two daughters, and 

lived together as husband and wife for 27 years until Semone’s death in 2014, all 

without challenge from Hilda, who was familiar with the New York rules for 

1

Unless otherwise noted, all section references are to the Internal Revenue 

Code in effect at all relevant times, and all Rule references are to the Tax Court 

Rules of Practice and Procedure. We round all monetary amounts to the nearest 

dollar. 
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[*4] challenging an invalid marriage. Hilda, in turn, reported in her tax returns that 

she was single and, after Semone’s death, made no statutory claim for an elective 

share as a surviving spouse against Semone’s considerable estate. 

Although the parties most directly interested in the status of Semone and 

Ziona’s marriage appear to have been satisfied with the validity of that marriage, 

and although no New York court has cast any doubts on that score, in his motion 

for partial summary judgment the Commissioner of Internal Revenue asks us to 

hold that Semone and Ziona’s Israeli marriage was a nullity and that, for Federal 

estate tax purposes, Hilda, not Ziona, was Semone’s “surviving spouse.” For the 

reasons set out below, we decline the Commissioner’s invitation. 

In its competing motion for partial summary judgment, the Estate of Semone 

Grossman (the “Estate”) contends that, based on the record before us, Ziona is 

Semone’s surviving spouse under section 2056(a). As we explain below, we agree

with the Estate.

Background

The following facts are derived from the pleadings, the parties’ motion 

papers, and the declarations and exhibits attached thereto. These facts are stated 

solely for the purpose of ruling on the motions and not as findings of fact in this 

case. See Ramey v. Commissioner, 156 T.C. ___, ___ (slip op. at 6) (Jan. 14, 
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[*5] 2021). The Preliminary Executor of the Estate, Richard M. Frome, resided in 

New York when the petition was filed.

A. Personal History

Semone Grossman was born in Germany in 1930 and spent most of 

his childhood in Poland. He and his family were Jewish, and many of his family 

members, including his parents, perished in the Holocaust. Semone was interned 

in a series of concentration camps during the war, but ultimately survived and 

emigrated to the United States in or around 1949. He settled in New York City and 

got into the business of owning and operating parking garages.

Semone’s first wife, Hilda Matrick Grossman, was also Jewish. Semone and 

Hilda were married in New York City in 1955 and subsequently had two children 

together.

Semone and Hilda ceased living together in the mid-1960s. In 1965, they 

entered into a separation agreement that set out their respective property rights and 

required Semone to make regular payments to Hilda. From that point on, Semone 

and Hilda never reconciled or cohabited.

By 1967, Semone had commenced a new relationship with Katia Equale, 

who was not Jewish. Semone traveled to Mexico to obtain a divorce from Hilda 

and, although Hilda did not appear or otherwise participate in the proceeding, the 
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[*6] divorce was granted by the Second Civil Court of the Bravos District, State of 

Chihuahua, Republic of Mexico, on or about August 24, 1967. After Semone 

obtained the divorce, Semone and Katia participated in a civil marriage ceremony 

in New Jersey and subsequently had two children.

By 1974, Semone and Katia’s relationship had ended. In that year, Hilda

filed suit in the Supreme Court of the State of New York against Semone and Katia 

seeking a declaratory judgment that the Mexican divorce was null and void and 

that she (Hilda) remained Semone’s lawful wife. After a trial held in 1976, the 

court ultimately found in Hilda’s favor and decided the following:

1. The marriage between defendant Simon Grossman[2] and 

plaintiff Hilda Matrick Grossman was not legally dissolved by a Court 

of competent jurisdiction.

2. The purported marriage between the defendant Simon 

Grossman and defendant Katia Grossman which took place on or 

about September 20, 1967, is null and void.

3. The defendant Simon Grossman is the lawful husband of 

the plaintiff Hilda Matrick Grossman. 

As already noted, Semone and Hilda did not cohabit after the court issued its

decision.

2

Various documents in the record spell Semone’s name as “Simon.”
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[*7] By 1986, Semone was engaged to Ziona. Ziona was born and raised in 

Israel and by 1986 had become a dual United States-Israeli citizen and a resident of 

New York. Her parents, siblings, and other family members and friends still lived 

in Israel at the time of Semone and Ziona’s engagement, and Ziona traveled 

between the United States and Israel several times per year to visit. Semone also 

had family and friends in Israel, and Semone and Ziona decided to get married 

there.

Before his marriage to Ziona, Semone asked Hilda to cooperate with him in 

the giving of a get, which is a religious divorce under rabbinical law. See Linda S. 

Kahan, “Jewish Divorce and Secular Courts: The Promise of Avitzur,” 73 Geo. L. 

J. 193, 194 (1984). On November 12, 1986, Semone and Hilda appeared before an 

orthodox rabbinical court (Beth Din)3 of the Lisker Congregation in New York and 

Semone gave Hilda a get. The Beth Din supervised the get, and several weeks later 

a rabbi from the Lisker Congregation executed a letter confirming that Semone had 

obtained a Jewish divorce in the rabbi’s presence on November 12, 1986. Semone 

presented the rabbi’s letter to the Beth Din of America in New York, and on 

3

Beth Din is the rabbinical term for a Jewish court of law. See Linda S. 

Kahan, “Jewish Divorce and Secular Courts: The Promise of Avitzur,” 73 Geo. L. 

J. 193, 193 n.3 (1984).
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[*8] December 22, 1986, the Beth Din of America issued a second letter 

confirming that Semone was Jewish and free to be married according to Jewish 

law. 

As part of their marriage registration process, Semone and Ziona traveled to 

Israel and presented evidence of the get to the Tel Aviv Beth Din. A rabbi from 

the Tel Aviv Beth Din signed the letter from the Beth Din of America, noting that it 

was “allowed” on December 25, 1986. Semone and Ziona were then issued a form 

ketubah (marriage contract), see id. at 193 n.2, 197-198, permitting them to marry 

in Israel. 

On January 14, 1987, Semone and Ziona were married in Herzliya, Tel 

Aviv, Israel, in a traditional Orthodox Jewish religious ceremony. Semone and 

Ziona completed and signed the ketubah and were issued a marriage certificate by 

the Israeli Ministry of Religious Services.4

 The certificate noted that, before 

entering the marriage, Ziona was single and Semone was divorced. 

After their marriage ceremony in Israel, Semone and Ziona returned to New 

York and continued to live there until Semone’s death in 2014. During those 

4

A copy of the ketubah and two copies of the marriage certificate, including 

an apostilled version, appear in the record of this case. An apostille is an 

international method, similar to notarization, for verifying the authenticity of 

foreign official records. See Corovic v. Mukasey, 519 F.3d 90, 93 n.2 (2d Cir. 

2008).
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[*9] 27 years, Semone and Ziona lived together as husband and wife. They had 

two children and shared a home and finances. The record includes copies of 

Semone and Ziona’s Federal income tax returns for the years 2000, 2007, 2010, 

2011, 2012, and 2013. For each year, they filed as “married filing jointly.” 

Semone and Ziona also purchased a burial plot in Israel, where Semone is now 

buried alongside Ziona’s parents. In Semone’s Last Will and Testament dated 

August 7, 2013, Semone directed that “any reference to ‘my wife’ * * * shall mean 

and refer to Ziona Grossman and only to Ziona Grossman[.]” 

Hilda continued to live in New York until her own death in 2014. She saw 

Semone and Ziona socially from time to time. The record includes copies of 

Hilda’s Federal income tax returns for the years 2011, 2012, 2013, and 2014. For 

each year, Hilda filed as “single.” When Semone died in New York in 2014, Hilda 

made no statutory claim against his estate as a surviving spouse. New York law 

permits such an action, authorizing a surviving spouse to make an election to take 

up to one-third of a decedent’s net estate. N.Y. Est. Powers & Trusts Law sec. 5-

1.1-A(a)(2) (McKinney 2021).
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[*10] B. The Estate Tax Controversy

Semone had a large estate at the time of his death, valued (according to the 

Estate) at approximately $87 million on a gross basis. The bulk of the estate 

(valued at approximately $79 million) was bequeathed to Ziona.

The Estate, which is being administered under the laws of New York, timely 

filed its Form 706, United States Estate (and Generation-Skipping Transfer) Tax 

Return, with the Internal Revenue Service (“IRS”). On the return, the Estate 

claimed a marital deduction under section 2056(a) with respect to the assets 

bequeathed to Ziona.

On March 8, 2018, the Commissioner mailed to the Estate a notice of 

deficiency that determined a Federal estate tax deficiency of $35,497,032. The 

notice also determined an accuracy-related penalty under section 6662 of 

$7,099,406. Most of the adjustments in the notice were attributable to the 

Commissioner’s determination that Semone and Ziona were not married to each 

other for Federal estate tax purposes and thus that Ziona did not qualify as 

Semone’s surviving spouse within the meaning of section 2056(a).

The Estate timely filed a petition with this Court to challenge the deficiency

determined by the Commissioner. The Commissioner moved for partial summary 

judgment under Rule 121, arguing that Ziona is not Semone’s surviving spouse 
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[*11] “under state law properly applied” and that no genuine issue of material fact 

remains with respect to this question. The Estate responded in opposition to the 

Commissioner’s motion and simultaneously filed a competing motion for partial 

summary judgment. The Estate’s motion agreed that no genuine issue of material 

fact remains, but framed the central question differently, arguing that Semone was 

married to Ziona (and thus that Ziona is Semone’s surviving spouse) “for Federal 

estate tax purposes.”

The Commissioner filed a response to the Estate’s motion, as well as a reply 

to the Estate’s response to the Commissioner’s motion. The Commissioner 

maintained in both filings that Ziona is not Semone’s surviving spouse under State 

law properly applied, and that the Court should rule on that basis.5

 The Estate 

5

The Commissioner also filed a motion under Rules 52 and 143(g) 

requesting that the Court strike from the record certain materials the Estate filed. 

The materials included memoranda and reports relating to aspects of marriage and 

divorce under Israeli and Jewish religious law and opining on the validity of 

Semone and Ziona’s marriage under that law. Under Rule 146, in determining 

foreign law, the Court is permitted to consider any material or source, whether or 

not submitted by a party or otherwise admissible. Additionally, a determination 

with respect to foreign law is treated as a ruling on a question of law. Rule 146. 

Because the Estate submitted the relevant materials to aid the Court in its 

determination of foreign law, Rule 143(g) is inapplicable. See Rule 146. Nor do 

we find the conditions set out in Rule 52 to be met here. See Rule 52 (permitting 

the striking of “any redundant, immaterial, impertinent, frivolous, or scandalous 

matter”). Accordingly, we will deny the Commissioner’s motion to strike the 

materials. Nevertheless, we have found it unnecessary to rely on the materials the 
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[*12] replied to the Commissioner’s response, again asserting that Semone was 

married to Ziona for Federal estate tax purposes.

After a conference call with the parties on December 3, 2020, the Court 

provided the Commissioner with an opportunity to supplement his motion and his 

response to the Estate’s motion. The Commissioner filed his supplementary 

materials on January 8, 2021, and the Estate responded on January 25, 2021. We 

held a hearing on both motions on February 25, 2021, during which the parties 

were heard.

Discussion

I. Legal Framework

A. Summary Judgment Standard

The purpose of summary judgment is to expedite litigation and avoid costly, 

time-consuming, and unnecessary trials. Fla. Peach Corp. v. Commissioner, 90 

T.C. 678, 681 (1988). The Court may grant summary judgment when there is no 

genuine dispute as to any material fact and a decision may be rendered as a matter 

of law. Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), 

aff’d, 17 F.3d 965 (7th Cir. 1994). In deciding whether to grant summary 

Estate submitted in reaching our decision, so, in a practical sense, the question of 

the Commissioner’s objections to those materials is moot.
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[*13] judgment, we construe factual materials and inferences drawn from them in 

the light most favorable to the nonmoving party. Sundstrand Corp. v. 

Commissioner, 98 T.C. at 520. However, the nonmoving party may not rest upon 

mere allegations or denials in his pleadings, but instead must set forth specific facts 

showing that there is a genuine dispute for trial. Rule 121(d); see also Sundstrand 

Corp. v. Commissioner, 98 T.C. at 520.

B. “Surviving Spouse” Under Section 2056(a) 

Section 2001(a) imposes a tax on the transfer of the taxable estate of every 

decedent who is a citizen or resident of the United States. Section 2056(a) 

provides that, “[f]or purposes of the tax imposed by section 2001, the value of the 

taxable estate shall * * * be determined by deducting from the value of the gross 

estate an amount equal to the value of any interest in property which passes or has 

passed from the decedent to his surviving spouse.” Put differently, if an interest in 

property passes to the decedent’s “surviving spouse,” the decedent’s estate 

generally avoids paying tax with respect to the value of that interest. See Estate of 

Morgens v. Commissioner, 133 T.C. 402, 409-410 (2009) (“The policy behind the 

marital deduction rule is that property passes untaxed from the first spouse to die to 

his or her surviving spouse but is then included in the estate of the surviving 

spouse.”), aff’d, 678 F.3d 769 (9th Cir. 2012). As a result, one’s status as the 
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[*14] surviving spouse is crucially important for the application of the Federal 

estate tax rules.

Our Court has held that the identification of a decedent’s surviving spouse is 

a Federal issue that should be determined by applying State law--typically, the law 

of the State where the decedent’s estate is administered. See Estate of Goldwater 

v. Commissioner, 64 T.C. 540, 550 (1975) (“In our view the congressional intent 

in enacting section 2056 was that the term ‘surviving spouse’ refers to the same 

person who is the surviving spouse under the law of the State in which the 

decedent’s estate is being administered.”), aff’d, 539 F.2d 878 (2d Cir. 1976); see 

also Estate of Steffke v. Commissioner, 64 T.C. 530, 534 (1975) (“Marriage, its 

existence and dissolution, is particularly within the province of the States.”), aff’d, 

538 F.2d 730 (7th Cir. 1976).

6

 If the courts of the relevant State have ruled on the 

validity of the marriage at issue, we generally will follow those rulings. See Estate 

of Steffke v. Commissioner, 64 T.C. at 538; see also Estate of Goldwater v. 

Commissioner, 539 F.2d at 880. Rulings from other States, however, do not 

necessarily bind us. See Estate of Spalding v. Commissioner, 537 F.2d 666, 668 

(2d Cir. 1976), rev’g T.C. Memo. 1975-250. There is no dispute in this case that 

6

Because Semone died in 2014, we need not decide whether section 

301.7701-18(b)(2), Proced. & Admin. Regs., which became effective in 2016, 

modifies the standards set forth in the authorities cited in the text. See infra note 7.
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[*15] Semone, Ziona, and Hilda all resided in the State of New York at all relevant 

times, that Semone died in New York, and that the Estate is being administered in 

New York.

The Commissioner argues we should apply Estate of Goldwater in this case, 

maintaining that, because Semone, Ziona, and Hilda were all New York residents 

at the time of Semone’s death and during all other relevant times, we must look to 

New York law “properly applied” to identify Semone’s surviving spouse. 

The Estate, by contrast, contends that an analysis of New York law is 

unnecessary. In the Estate’s view, the Commissioner is bound by certain IRS 

revenue rulings that establish a “place of celebration” test to assess the validity of a 

marriage for Federal tax purposes. See Rev. Rul. 2013-17, 2013-38 I.R.B. 201; 

Rev. Rul. 58-66, 1958-1 C.B. 60; Rev. Rul. 53-29, 1953-1 C.B. 67. Under this 

approach, Semone’s marriage to Ziona would be valid so long as it was valid in the 

place of celebration, i.e., Israel, without regard to the law of the State where the 

parties lived.

7

 

7

Section 301.7701-18(b)(2), Proced. & Admin. Regs., which became 

effective in 2016, formalized the place of celebration test for Federal tax purposes. 

The regulation requires that, in addition to being valid under the law of the place of 

celebration, a foreign marriage must also be recognizable under the laws of at least 

one State: “Two individuals who enter into a relationship denominated as 

marriage under the laws of a foreign jurisdiction are recognized as married for 
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[*16] Alternatively, the Estate contends, we may resolve this case based on Estate 

of Spalding, a decision by the U.S. Court of Appeals for the Second Circuit, to 

which an appeal in this case would lie under section 7482(b)(1)(A) unless the 

parties agree otherwise.8

 Estate of Spalding analyzes section 2056 and suggests 

that, if no court from the State in which a decedent’s estate is administered (here, 

New York) has declared the decedent’s marriage invalid, then the Commissioner is 

precluded from challenging the marriage. See Estate of Spalding v. 

federal tax purposes if the relationship would be recognized as marriage under the 

laws of at least one state, possession, or territory of the United States, regardless of 

domicile.” Id. The regulation became effective after Semone’s death and therefore 

does not apply here.

8

Because there is no dispute that the Estate is being administered under the 

laws of New York, the decedent died in New York, and the executor of the Estate 

resided in New York when the petition was filed, we need not decide which of 

these facts determines the appellate venue under section 7482(b)(1)(A). See Estate 

of Clack v. Commissioner, 106 T.C. 131, 140-141 (1996) (concluding it was 

unnecessary to decide the question of proper appellate venue for a Federal estate 

tax case); id. at 145-149 (Gerber, J., concurring) (concluding that appellate venue 

depends on domicile of decedent); id. at 142 (Chabot, J., concurring in result) 

(agreeing with Judge Gerber on appellate venue); id. at 152, 159-167 (Parker, J., 

dissenting) (concluding that appellate venue depends on residence of executor of 

estate). Compare Estate of Thompson v. Commissioner, 382 F.3d 367, 374 n.12 

(3d Cir. 2004) (concluding without significant discussion that residence of 

executor controls in Federal estate tax case), aff’g T.C. Memo. 2002-246, with

Estate of Israel v. Commissioner, 159 F.3d 593, 595 (D.C. Cir. 1998) (reaching the 

same conclusion in Federal income tax case), rev’g and remanding 108 T.C. 208 

(1997), and Kruskal v. United States, 178 F.2d 738, 740 (2d Cir. 1950) (addressing 

the issue in Federal estate tax refund claim case).
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[*17] Commissioner, 537 F.2d at 668 (holding that, despite a New York judgment 

invalidating husband’s prior divorce, his subsequent marriage to a California 

resident was valid for Federal estate tax purposes; any pronouncement to the 

contrary would need to be made by a California court). This reading presumably 

would resolve this case in the Estate’s favor because no New York court has ruled 

on the validity of Semone and Ziona’s marriage.9

 

Finally, the Estate maintains that, even if we ignore the revenue rulings and 

Estate of Spalding and rely instead on New York law (as the Commissioner 

contends we should), the Estate still prevails. 

Because the Estate argues that it prevails even under the standard advocated 

by the Commissioner, for purposes of ruling on the motions before us we assume 

(without deciding) that we must look to New York law to decide whether Ziona is 

Semone’s surviving spouse. After reviewing the applicable New York law, we 

conclude that she is. Accordingly, we need not resolve whether we are required to 

9

This conclusion would not be inconsistent with U.S. Court of Appeals for 

the Second Circuit cases that analyze a marriage’s validity in the context of 

adjudicating social security benefits, because those cases involve a statute that, 

unlike section 2056, specifically provides that marital status should be determined 

according to what the courts of the domiciliary State would decide if presented 

with the issue. See, e.g., Steele v. Richardson, 472 F.2d 49 (2d Cir. 1972) 

(applying 42 U.S.C. section 416(h)(1)(A)); Dolan v. Celebrezze, 381 F.2d 231 (2d 

Cir. 1967) (same).
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[*18] apply New York law, the revenue rulings, or Estate of Spalding to determine 

Ziona’s status under section 2056(a). See, e.g., UnionBancal Corp. v. 

Commissioner, 113 T.C. 309, 316-317 (1999) (declining to determine whether 

temporary regulation was entitled to deference under Chevron, U.S.A., Inc. v. Nat. 

Res. Def. Council, Inc., 467 U.S. 837 (1984), because regulation was valid even 

under a less deferential standard of review), aff’d, 305 F.3d 976 (9th Cir. 2002). 

Before turning to our analysis of New York law, we pause in Part II to 

provide a brief summary of the rules that apply to marriages and divorces of 

Jewish persons under Israeli law. These rules will inform our discussion of New 

York’s place of celebration rule in Part III.

II. Israeli Rules on Marriage and Divorce of Jewish Persons

Since its inception, Israel has maintained a bifurcated legal system that 

incorporates both civil and religious law, each with jurisdiction over different 

aspects of daily life. See Asher Maoz, “Enforcement of Religious Courts’ 

Judgments under Israeli Law,” 33 J. Church & St. 473, 473-475 (1991). This 

arrangement traces its origin to the laws of the Ottoman empire. See Isaac S. 

Shiloh, “Marriage and Divorce in Israel,” 5 Isr. L. Rev. 479, 481-482 (1970).

As relevant here, citizens or residents of Israel who belong to a designated 

religious community are subject to that community’s laws in certain matters of 
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[*19] personal status, including marriage and divorce, and each religious 

community has a system of religious courts that are authorized by the state. See

Maoz, supra, at 473-475; Shiloh, supra, at 485; see also Edwin Freedman, “Family 

Law in Israel: Overview,” Practical Law Country Q&A (Westlaw 2020). For 

Jewish couples, therefore, matters of marriage and divorce in Israel are governed 

by Jewish religious law and are exclusively within the jurisdiction of Israel’s 

rabbinical courts.10 See Maoz, supra, at 474-475; Shiloh, supra, at 484; see also

Hassan v. Holder, 604 F.3d 915, 925 n.7 (6th Cir. 2010).

Before marrying in Israel, a Jewish couple must present the rabbinical courts 

with evidence of their eligibility to marry under Jewish law. See Marriage, U.S. 

Embassy in Israel, https://il.usembassy.gov/u-s-citizen-services/local-resources-ofu-s-citizens/marriage/ (see Marriage between Jews) (last visited May 3, 2021).11

The evidence must establish that both individuals are Jewish and unmarried. See

10Individuals who are not affiliated with a designated religious community 

or who have spouses who are affiliated with a different religious community 

generally are subject to Israeli civil law in matters of marriage and divorce. See

Edwin Freedman, “Family Law in Israel: Overview,” Practical Law Country 

Q&A, at Q&A-1, Q&A-10 (Westlaw 2020).

11Similar information is available in Hebrew on the official website of 

Israel’s Ministry of Religious services. See Ministry of Religious Services, Israel 

Government Services and Information, 

https://www.gov.il/en/departments/ministry_of_religious_services (last visited 

May 3, 2021).
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[*20] id. If either individual has been married to another Jewish person previously, 

then the couple must demonstrate that the prior marriage has been dissolved. See

id. Bigamy is illegal in Israel. See Pinhas Shifman, “Family Law in Israel: The 

Struggle Between Religious and Secular Law,” 24 Isr. L. Rev. 537, 539 (1990).

For purposes of Jewish religious law, a marriage can be dissolved only upon 

the death of one of the spouses or by means of divorce. See Lisa Zornberg, 

“Beyond the Constitution: Is the New York Get Legislation Good Law?,” 15 Pace 

L. Rev. 703, 703 n.2 (1995); J. David Bleich, “Jewish Divorce: Judicial 

Misconceptions and Possible Means of Civil Enforcement,” 16 Conn. L. Rev. 201, 

201 (1984). A get (i.e., a religious divorce) is the only means of obtaining a 

divorce; a civil divorce has no effect on an individual’s eligibility to remarry under 

Jewish religious law. See Zornberg, supra, at 703; see also Freedman, supra, 

at Q&A-10. If a Jewish person presents evidence of a get validly provided in 

another country under the supervision of that country’s rabbinical courts, then 

Israel’s rabbinical courts will recognize the get.

12 See Freedman, supra, at Q&A10 (“[I]f an Israeli couple divorces in a recognised rabbinical court in England, 

even though they may not be divorced under English law, their divorce will be 

12Semone and Ziona followed this procedure when they presented letters 

from the Beth Din of America and the Lisker congregation to the Tel Aviv Beth 

Din.
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[*21] recognised by the Israeli Rabbinical Courts, which will permit them to 

register as divorced and to remarry.”). Such an individual would be considered 

divorced (and therefore single) under Jewish religious law and would be eligible to 

remarry in Israel. See id.

Once Israel’s rabbinical courts have confirmed that a Jewish couple satisfies 

the eligibility requirements, the couple is issued a form ketubah (that is, the 

marriage contract). The couple signs the ketubah before the wedding ceremony, 

which is performed by a rabbi in accordance with Jewish religious traditions. 

After the ceremony, Israel issues a marriage certificate, which constitutes proof 

that the couple is married for purposes of Israeli law. As noted above, an 

apostilled copy of Semone and Ziona’s marriage certificate appears in the record of 

this case.

With this background in mind, we turn now to an analysis of Semone and 

Ziona’s marriage under New York law.

III. New York Law on the Recognition of Marriages Celebrated Outside 

New York

This case turns on the identity of Semone’s surviving spouse for Federal 

estate tax purposes, a question to be decided (we assume for purposes of the 

motions before us) based on New York law. The Commissioner focuses his 
- 22 -

[*22] analysis on Semone and Hilda’s divorce, arguing that Hilda is the surviving 

spouse because she and Semone never validly divorced under New York law. 

Accordingly, the Commissioner insists, no subsequent marriage, including 

Semone’s marriage to Ziona, would be respected in New York. The Estate, on the 

other hand, looks first to Semone and Ziona’s marriage. It maintains that Ziona is 

Semone’s surviving spouse because New York applies a place of celebration rule 

and there is no dispute that the marriage was valid in Israel, the place of 

celebration. In the Estate’s view, the place of celebration rule encompasses the 

determination of whether prospective spouses are eligible to be married. The 

Estate therefore concludes that New York would accept Israel’s determination 

regarding the sufficiency of Semone and Hilda’s divorce for purposes of Semone’s 

later marriage to Ziona. As described above and further below, we agree that the 

analysis should focus on Semone and Ziona’s marriage and that the place of 

celebration rule controls the outcome of this case. We also conclude that the 

Commissioner’s insistence on focusing on the status of Semone and Hilda’s 

religious divorce exclusively under New York law is misplaced.

A. Place of Celebration 

The question of whether New York residents who celebrate marriages 

outside New York should be considered to be legally married in New York is not 
- 23 -

[*23] new. Since at least 1881, the New York Court of Appeals, the highest court 

in New York,13 has recognized the “general rule of law that a contract entered into 

in another State or country, if valid according to the law of that place, is valid 

everywhere.” Van Voorhis v. Brintnall, 86 N.Y. 18, 24 (1881). As applied to 

marriages, “the rule recognizes as valid a marriage considered valid in the place 

where celebrated.” Id. at 25. Moreover, “‘[w]e all know * * * that in questions of 

marriage contract, the lex loci contractus [the law of the place of the contract] is 

that which is to determine the status of the parties,’ and * * * this by consent of all 

nations is jus gentium [the law of nations or international law].” Id. (quoting 

Connelly v. Connelly, 2 Eng. L. & Eq. 570 (1851)). This rule is subject to two 

exceptions: cases “first of incest or polygamy coming within the prohibitions of 

natural law [and] second, of prohibitions by positive law.” Id. at 26 (citations 

omitted).

14 But the exceptions are narrow.

13As the U.S. Supreme Court said in West v. Am. Tel. & Tel. Co., 311 U.S. 

223, 236 (1940): “[T]he highest court of the state is the final arbiter of what is 

state law. When it has spoken, its pronouncement is to be accepted by federal 

courts as defining state law unless it has later given clear and persuasive indication 

that its pronouncement will be modified, limited or restricted.” 

14As the New York Court of Appeals summarized the law in Matter of May, 

305 N.Y. 486, 490 (1953):
- 24 -

[*24] For example, in Matter of May, 305 N.Y. 486, 488 (1953), the New York 

Court of Appeals was asked to decide whether the marriage of an uncle and his 

niece by half blood celebrated in Rhode Island--where the marriage was valid--

could be given effect in New York where the statute declared a marriage between 

an uncle and his niece incestuous and void. In holding that the marriage was 

respected in New York, the court followed the principle recognized in Van Voorhis

and concluded that neither of the two exceptions applied. Id. at 491.

With respect to the first exception, the court observed that the marriage 

“solemnized, as it was, in accord with the ritual of the Jewish faith in a State whose 

legislative body has declared such a marriage to be ‘good and valid in law’, was 

We regard the law as settled that, subject to two exceptions 

presently to be considered, and in the absence of a statute expressly 

regulating within the domiciliary State marriages solemnized abroad, 

the legality of a marriage between persons sui juris is to be determined 

by the law of the place where it is celebrated. (Van Voorhis v. 

Brintnall, 86 N.Y. 18, 24; Thorp v. Thorp, 90 N.Y. 602, 605-606; 

Moore v. Hegeman, 92 N.Y. 521, 524; Medway v. Needham, 16 

Mass. 157, 159-160; Fensterwald v. Burk, 129 Md. 131; Restatement, 

Conflict of Laws, §§ 121. 131, 132; Story on Conflict of Laws [7th 

ed.], § 113; 2 Beale. Conflict of Laws, pp. 669-670; 1 Bishop on 

Marriage, Divorce and Separation, § 856.)

See also Matter of Mott v. Duncan Petroleum Trans., 51 N.Y.2d 289, 292-293 

(1980) (applying the place of celebration rule to common-law marriages and 

holding that the “quite liberal” Georgia law with respect to such unions must be 

followed in determining the existence of a marriage even though New York itself 

did not recognize common-law marriages).
- 25 -

[*25] not offensive to the public sense of morality to a degree regarded generally 

with abhorrence and thus was not within the inhibitions of natural law.” Id.

at 493.15 

With respect to the second exception, the court observed that, although the 

relevant New York statute “declares to be incestuous and void a marriage between 

an uncle and a niece and imposes penal measures upon the parties thereto, it is 

important to note that the statute does not by express terms regulate a marriage 

solemnized in another State where, as in our present case, the marriage was 

concededly legal.” Id. at 491. Thus, “absent any New York statute expressing 

clearly the Legislature’s intent to regulate within this State marriages of its 

domiciliaries solemnized abroad, there is no ‘positive law’ in” New York barring 

the recognition of the marriage. Id. at 493.16 

15The spouses in Matter of May, 305 N.Y. at 489, “entered into a ceremonial 

marriage performed by and at the home of a Jewish rabbi.” 

16The New York Court of Appeals’ decision rejected the position taken by 

the Surrogate’s Court. Like the Commissioner here, the lower court had concluded 

that “although the marriage of * * * [the husband] and the decedent [wife] in 

Rhode Island in 1913 was valid in that State, such marriage was not only void in 

New York as opposed to natural law but is contrary to the provisions of 

subdivision 3 of section 5 of the Domestic Relations Law.” Matter of May, 305 

N.Y. at 489-490. In the New York Court of Appeals’ view, that conclusion was 

contrary to Van Voorhis v. Brintnall, 86 N.Y. 18 (1881), where the Court of 

Appeals “gave careful consideration to, and held against the application of two 
- 26 -

[*26] The conclusion in Matter of May was fully aligned with that in Van Voorhis, 

which cited with approval an earlier case holding that the New York law’s criminal 

prohibition against bigamy did not apply when the second marriage took place in 

Canada. Van Voorhis, 86 N.Y. at 31 (citing People v. Mosher, 2 Par. Cr. Rep. 195 

(1855)). Turning to the civil case before it, the Van Voorhis court asked 

rhetorically: “Now if the criminal court has no jurisdiction to punish the act when 

committed out of the State, how has the civil court jurisdiction to prohibit the 

doing of the act out of the State?” Id. at 32. Answering its own question, the court 

went on to conclude: “The statute does not in terms prohibit a second marriage in 

another State, and it should not be extended by construction.” Id.

New York courts have consistently followed the rules set out in Van 

Voorhis. See, e.g., Matter of May, 305 N.Y. at 491; Moore v. Hegeman, 92 N.Y. 

521, 524-525, 528 (1883); Matter of Ranftle, 81 A.D.3d 566, 567 (1st Dep’t 2011); 

Martinez v. County of Monroe, 50 A.D.3d 189, 191-192 (4th Dep’t 2008); Matter 

of Peart, 277 A.D. 61, 64-65, 68-69 (1st Dep’t 1950). Indeed, they have done so 

even when New York residents have gone out of the State “for the purpose of 

exceptions to * * * [the place of celebration] rule--viz., cases within the prohibition 

of positive law; and cases involving polygamy or incest in a degree regarded 

generally as within the prohibition of natural law.” Matter of May, 305 N.Y. 

at 491.
- 27 -

[*27] evading * * * [New York’s marriage] laws, returning to * * * [New York] on 

the day of the marriage, and thereafter residing” in New York. Thorp v. Thorp, 90 

N.Y. 602, 605 (1882); see also Van Voorhis, 86 N.Y. at 23 (summarizing the trial 

court’s findings in that case). 

There is no genuine dispute here that Semone and Ziona celebrated their 

marriage in Israel in 1987 and that Israel considered Semone and Ziona validly 

married. The Estate has submitted an apostilled Israeli marriage certificate, along 

with a completed ketubah and other documents. The Commissioner has presented 

no evidence to challenge the authenticity of these documents or otherwise to cast 

doubt on their validity.17 Thus, under Van Voorhis and its progeny, we conclude 

that New York would respect Semone and Ziona’s marriage unless one of the two 

17At various points, the Commissioner has suggested that there is more to 

this case than meets the eye and that issues could be raised with respect to, for 

example, the validity of the get under Israeli law or how certain individuals viewed 

Semone and Ziona’s relationship. But despite being given several opportunities to 

raise a genuine issue of material fact, the Commissioner has failed to do so. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250 (1986) (“[T]here is no 

issue for trial unless there is sufficient evidence favoring the nonmoving party for 

* * * [the return of] a verdict for that party. If the [nonmoving party’s] evidence is 

merely colorable, or is not significantly probative, summary judgment may be 

granted.” (Citations omitted.)). Under our rules, as noted above, the nonmoving 

party may not rest upon mere allegations or denials, but instead must set forth 

specific facts showing that there is a genuine dispute for trial. Rule 121(d); see 

also Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17 F.3d 

965 (7th Cir. 1994).
- 28 -

[*28] exceptions applies. The Commissioner argues strenuously that both 

exceptions apply and render the marriage void. We now turn to those arguments.

1. The First Exception

To begin with, the Commissioner contends that Semone and Ziona’s 

marriage is contrary to public policy, “coming within the prohibitions of natural 

law,” because it is bigamous. See Van Voorhis, 86 N.Y. at 26. The argument goes 

like this: New York courts do not recognize religious divorces, such as the get

Semone gave to Hilda in New York before Semone and Ziona celebrated their 

marriage in Israel. Because the get was insufficient to dissolve Semone and 

Hilda’s marriage for purposes of New York law, Semone and Hilda were not

validly divorced and any subsequent marriage by Semone would be bigamous. If 

Semone and Ziona had sought to get married in New York relying on the get, they 

would not have been able to. Semone and Ziona, the Commissioner maintains,

cannot evade the requirements of New York law by having Hilda receive a get

from Semone in New York, having that get acknowledged in Israel, and getting 

married in Israel.

The Commissioner’s argument is flawed in several respects. First, the 

Commissioner begins his analysis by asking whether Semone and Hilda were 

validly divorced and relies exclusively on New York law to determine the answer. 
- 29 -

[*29] But that is the wrong starting question, and the Commissioner looks to the 

wrong jurisdiction for the governing law. Under section 2056(a)--the provision at 

issue in this case--the Court must determine whether Ziona was Semone’s 

“surviving spouse” for Federal estate tax purposes. Accordingly, the proper 

starting question is whether Semone and Ziona were validly married. To answer 

that question, given the parties’ positions on this score, we assume (without 

deciding) that we should look to New York law. And New York law in turn 

requires us to consider the rules of the place of the celebration of the marriage, 

here Israel. 

It is well established that capacity to marry is a prerequisite for marriage and 

that the prerequisites for marriage are also determined by the place of celebration. 

As the New York Court of Appeals in Van Voorhis, 86 N.Y. at 25 (quoting 

Connelly, 2 Eng. L. & Eq. 570), put it: “We all know * * * that in questions of 

marriage contract, the lex loci contractus [the law of the place of the contract] is 

that which is to determine the status of the parties.” This includes whether a 

person seeking to remarry has been validly divorced. The Restatement (Second) of 

Conflict of Laws, on which the Commissioner relies, highlights the same point. 

Restatement, Conflict of Laws 2d, sec. 283 cmt. h (1971) (“[A] marriage will 

usually be valid everywhere if it complies with the requirements of the state where 
- 30 -

[*30] it was contracted as to such matters as * * * the capacity of either party to 

marry[.]”). Caselaw and other Federal agencies agree on this principle. See, e.g., 

Jahed v. Acri, 468 F.3d 230, 235 (4th Cir. 2006) (“Ordinarily, in the immigration 

context, the validity of a prior divorce is addressed to determine whether a 

subsequent marriage is lawful. See, e.g., Matter of Hosseinian, 19 I. & N. Dec. 

453 (BIA 1987). In such situations, the * * * [Board of Immigration Appeals]

‘look[s] to the law of the state where the subsequent marriage was celebrated to 

determine whether or not that state would recognize the validity of the divorce.’ 

Id. at 455.”).

Here, there is no dispute that Israel--the place of Ziona’s marriage 

celebration--viewed Semone and Hilda as validly divorced and Semone as capable 

of remarrying. This was demonstrated by Israel’s acceptance of the letter from the 

Beth Din of America, the issuance of a ketubah to Semone and Ziona, and the later 

issuance of a marriage certificate. Under Israeli law, religious divorces (i.e., gets)

are fully recognized. Indeed, they are the only way for people of Jewish faith who 

have been married before to make themselves eligible to remarry another Jewish 

person in Israel. See supra Part II. Since New York law requires us to look to the 

law of the place of the marriage celebration to determine the parties’ capacity to 

marry, New York law also requires us to defer to the place of celebration and its 
- 31 -

[*31] determination on whether one of those parties was validly divorced and 

therefore capable to remarry.

18 See, e.g., Matter of May, 305 N.Y. at 491. 

Applying this standard, we would expect the New York Court of Appeals to accept 

Israel’s determination that Semone and Hilda’s marriage had ended, leaving

Semone free to marry Ziona.19

Although the Commissioner repeatedly invokes the concept of “bigamy,” 

the analysis above demonstrates that Semone and Ziona’s marriage was not 

bigamous either in Israel or in New York. This conclusion is fully consistent with 

New York’s interpretation of bigamy from a criminal law perspective.

Specifically, even if one believed that Semone and Hilda remained married from a 

New York perspective after 1986, the act of contracting the marriage to Ziona in 

18It bears repeating that Semone and Ziona did not seek to enter into a 

marriage contract in New York. Therefore, New York’s own rules as the place of 

celebration are not triggered. That Semone and Ziona might not have been able to 

get married in New York had they attempted to do so is irrelevant to whether they 

could be validly married elsewhere.

19We note here that the Israeli authorities were fully aware of Semone’s prior 

marriage to Hilda, distinguishing this case from those in which one of the parties to 

the second marriage fails to inform the place of celebration of a prior marriage and 

simply acts as if the prior marriage did not exist. See, e.g., Dolan, 381 F.2d at 233-

236 (describing several cases in which one spouse’s dishonesty regarding a prior 

marriage was a factor weighing against the validity of a later marriage). In those 

cases, the second marriage presumably would be invalid in the place of celebration 

as well.
- 32 -

[*32] 1987 took place outside New York, and New York courts have held that such 

marriages do not satisfy the statutory definition of bigamy. See People v. Hess, 

286 A.D. 617, 619 (3d Dep’t 1955) (“[A] person is not guilty of bigamy because 

he lives in this State with a partner to an illegal second marriage contracted 

elsewhere.”); see also Van Voorhis, 86 N.Y. at 30-35 (collecting and analyzing 

authorities). 

More generally, the Commissioner fails to recognize that the public policy 

exception to the place of celebration rule is narrow. The New York Court of 

Appeals has held that the exception applies when a marriage falls “within the 

inhibitions of natural law” because it is “offensive to the public sense of morality 

to a degree regarded generally with abhorrence.” See Matter of May, 305 N.Y. 

at 493. We cannot agree that Semone and Ziona’s marriage falls under this 

standard. This is not a case in which one spouse sought to cohabit with two or 

more other “spouses” at the same time. Semone was a serial monogamist who 

sought to end his marriage to Hilda before his marriage to Ziona began. All the 

parties most intimately involved in both marriages appear to have understood that 

Semone and Hilda were divorced and that Semone and Ziona were married.20 

20Hilda was familiar with the New York rules for challenging an invalid 

marriage, as demonstrated by the declaratory judgement action she brought in the 
- 33 -

[*33] Despite the Commissioner’s efforts to show otherwise, we do not see how

New York’s policy interest in preventing marriages involving incest, polygamy, 

and the like would be implicated here. 

New York does, of course, have a policy interest in dictating the steps for

obtaining a divorce in New York. The Commissioner argues that accepting

Semone and Ziona’s marriage would undercut the general refusal of New York

courts to recognize religious divorces. But New York has implicitly prescribed the 

relevant steps for obtaining a divorce in this case by adopting a place of celebration 

rule for marriages contracted outside the State.21 And, even if that were not the 

Supreme Court of the State of New York against Semone and Katia in 1974. She 

had 27 years to bring a similar action against Semone and Ziona if she believed 

their marriage to be invalid. But she did not.

21The cases cited by Commissioner generally concern the validity of 

subsequent marriages that were celebrated in New York or a similar State that did 

not recognize the validity of a religious divorce, rather than in a country that did 

recognize the validity of such divorces. See, e.g., Shikoh v. Murff, 257 F.2d 306 

(2d Cir. 1958) (husband was not entitled to adjustment of immigration status based 

on marriage to second wife in New York when divorce from first wife was 

premised on an Islamic divorce obtained in Brooklyn); In re Spiegel, 24 F.2d 605 

(S.D.N.Y. 1928) (second marriage celebrated within the United States was 

bigamous for purposes of immigration determination when husband prepared a get

in New York and mailed it to his first wife in Poland, but otherwise took no steps 

to obtain a divorce). The Commissioner has cited no case in which a New York 

court, at the request of an outsider to the marriage, has held invalid a marriage that 

was valid at the place of its celebration. For example, the Commissioner cites 

Magner v. Hobby, 215 F.2d 190 (2d Cir. 1954), in which the Second Circuit 
- 34 -

[*34] case, we are aware of no authority that equates a policy interest in dictating 

divorce formalities with those that implicate “natural law” concerns. See Van 

Voorhis, 86 N.Y. at 26 (describing prohibitions of “natural law” as consisting of 

incest and polygamy). In Matter of May, 305 N.Y. at 491, moreover, the New 

York Court of Appeals held that even New York’s strong policy against incest 

must yield to the place of celebration rule in certain circumstances. The husband 

and wife in Matter of May would not have been able to get married in New York 

invalidated the Connecticut marriage of two New York residents after Mexican 

“divorces by mail” that purported to terminate their earlier marriages. But the 

parties in that case did not even attempt to argue that Connecticut--the place of 

celebration for the second marriage--would have respected the Mexican divorces. 

Id. at 193. Indeed, they did not defend the validity of the second marriage at all. 

See id.; see also Caldwell v. Caldwell, 298 N.Y. 146, 147-150 (1948) (husband 

was correct that his later marriage in Virginia was invalid when it was premised on 

a Mexican “divorce by mail” that his first wife said was “valueless”).

Similarly, the Commissioner’s reliance on Earle v. Earle, 141 A.D. 611 (1st 

Dep’t 1910), which involved a later marriage in Italy, is misplaced. First, the law 

of the place of celebration in that case (Italy) was not proven, so the court assumed 

that law would be the same as New York law. Here, it is undisputed that Israeli 

law differs from New York law when it comes to the effect of religious divorces 

for adherents of the Jewish faith. Second, the court in that case concluded that, at 

the time of the celebration of the second marriage, “the bonds of matrimony [from 

the first marriage remained] in full force.” Id. at 613. That is not so here; from an 

Israeli law perspective, the bonds of matrimony from the first marriage had been 

duly severed. Third, unlike Earle, which involved a second wife’s action to annul 

her own marriage celebrated abroad, here the Commissioner seeks to have a 

marriage celebrated abroad declared invalid over the objection of one of the 

spouses and when the spouse from the first marriage registered no objection to the 

second marriage for nearly three decades.
- 35 -

[*35] because their relationship would have been incestuous under the terms of the 

New York statute. Nevertheless, their marriage by a Jewish rabbi in Rhode Island 

was respected by New York, notwithstanding New York’s own contrary rule. Id. 

The Commissioner offers no persuasive reasons why the New York Court of 

Appeals should be expected to reject the marriage at issue here when it accepted as 

valid the marriage in Matter of May.

22

Van Voorhis offers the same lesson. The husband in that case had 

committed adultery during his first marriage. Van Voorhis, 86 N.Y. at 23. His 

first wife obtained a divorce, but under the applicable New York statute, the 

husband was prohibited from remarrying during the first wife’s lifetime. Id. Had 

he attempted to remarry in New York, the marriage would have been bigamous 

and void. Id. at 25-26. Despite the New York restriction, indeed to evade it, the 

husband traveled to Connecticut to marry his second wife. Id. at 23. Applying the 

place of celebration rule after an extensive discussion of the relevant authorities, 

the New York Court of Appeals respected the second marriage, in effect deferring 

to Connecticut’s judgment on whether the husband was freed from his prior 

marriage and eligible to remarry. See also Matter of Peart, 277 A.D. at 64-65, 

22Similar arguments to those offered by the Commissioner were made in 

dissent in Matter of May, 305 N.Y. at 494-495, but they did not carry the day, as 

the majority opinion received five votes and the dissenting judge was alone.
- 36 -

[*36] 68-69 (involving a New York court’s analysis of the effect of a Virginia 

divorce decree on a marriage celebrated in Maryland and holding that Maryland 

law governed the effect of the decree).

In light of the foregoing and based on the facts before us, we would expect 

the New York Court of Appeals to conclude that the first exception to the place of 

celebration rule does not apply to invalidate Semone and Ziona’s marriage.

2. The Second Exception

In addition, the Commissioner contends that Semone and Ziona’s marriage 

violates New York positive law. The Commissioner relies on article I, section 9 of 

the New York Constitution, which provides that no “divorce [shall] be granted 

otherwise than by due judicial proceedings.” There are two flaws with this 

argument. First, as Van Voorhis, Thorp, and Matter of May make clear, because 

this provision does not purport to have extraterritorial effect, it cannot be violated 

by actions (the contracting of marriage) that take place outside New York. See

Matter of May, 305 N.Y. at 492; Thorp, 90 N.Y. at 606; Van Voorhis, 86 N.Y. 

at 31-32. Second, and more fundamentally, recognition of a marriage celebrated 

outside New York is far different from the granting of a divorce.

23 Here, the Estate 

23Again, by focusing on the divorce, the Commissioner begins with the 

wrong question. We do not pass here on the validity of the divorce in New York; 
- 37 -

[*37] seeks recognition of Ziona’s Israeli marriage to Semone. We do not have 

before us a request by a party to the first or second marriage with respect to a 

divorce decree.

24

rather, we decide on the validity of the marriage in Israel. In such cases, New 

York (as well as Federal caselaw and other Federal agencies) defers to the place of 

celebration (i.e., Israel) to determine whether the parties are eligible to marry. Van 

Voorhis, 86 N.Y. at 25 (“[I]n questions of marriage contract, the lex loci contractus

is that which is to determine the status of the parties[.]” (quoting Connelly v. 

Connelly, 2 Eng. L. & Eq. 570 (1851))); see also Matter of May, 305 N.Y. at 491

(place of celebration determines eligibility to marry); cf. Jahed v. Acri, 468 F.3d 

230, 235 (4th Cir. 2006) (“Ordinarily, in the immigration context, the validity of a 

prior divorce is addressed to determine whether a subsequent marriage is lawful. 

See, e.g., Matter of Hosseinian, 19 I. & N. Dec. 453 (BIA 1987). In such 

situations, the * * * [Board of Immigration Appeals] ‘look[s] to the law of the state 

where the subsequent marriage was celebrated to determine whether or not that 

state would recognize the validity of the divorce.’ Id. at 455.”).

24This point is key in distinguishing the cases the Commissioner cites, in 

which New York courts refused to recognize the validity of a get. In each of them, 

a party to the first or second marriage (or heirs of the party) sought a ruling that 

affected their own status. See, e.g., Chertok v. Chertok, 208 A.D. 161 (1st Dep’t 

1924) (granting annulment requested by second wife when she was unaware of 

husband’s first marriage, which he had attempted to terminate in New York by 

means of a get); In re Estate of Goldman, 156 Misc. 817 (N.Y. Sur. Ct. 1935) (in a 

contest between second wife and children of first marriage over estate’s letters of 

administration, get prepared in New York and ratified in Russia, where first wife 

lived, did not terminate first marriage); Shilman v. Shilman, 105 Misc. 461 (N.Y. 

Sup. Ct. 1918) (husband could not obtain New York divorce on grounds of 

adultery when he gave first wife a get and she returned to Russia, where she 

allegedly remarried), aff’d, 188 A.D. 908 (1st Dep’t 1919), aff’d, 230 N.Y. 554 

(1920) (per curiam); see also Matter of Atiram, 25 Misc. 3d 1231(A) (N.Y. Sur. Ct. 

2009) (in an unreported decision, court agreed with wife that New York get

following her marriage to husband in Israel did not preclude her election to claim 
- 38 -

[*38] 3. Other Public Policy Considerations

In its briefing and at the hearing on the competing motions, the 

Commissioner raised generalized concerns that finding Ziona to be Semone’s 

surviving spouse would open the floodgates to other New Yorkers ending their 

New York marriages without notice to their existing New York spouses, contrary 

to New York public policy. The Court struggles to see how applying New York 

law that has been settled for 140 years to the facts before us will bring about such 

disconcerting results. The Commissioner’s concerns are even more puzzling in 

light of the policy choice reflected in section 301.7701-18(b)(2), Proced. & Admin. 

against husband’s estate where there was no later marriage); Tsirlin v. Tsirlin, 19 

Misc. 3d 1132(A) (N.Y. Sup. Ct. 2008) (in another unreported decision, a get 

obtained in New York and ratified in Israel was not a valid divorce under New 

York law where there was no later marriage and evidence suggested the parties did 

not consider themselves legally divorced). Those types of cases raise materially 

different concerns than cases in which the parties to the earlier marriage do not 

contest the validity of the subsequent marriage. Cf. Imbrioscia v. Quayle, 278 

A.D. 144 (1st Dep’t 1951) (in a case not cited by the Commissioner, the court 

invalidated a Mexican divorce despite the later marriage also taking place in 

Mexico where decedent’s first wife was part of the case and actively disputed the 

second wife’s claim and no one relied on the place of celebration rule), aff’d, 303 

N.Y. 841 (1952). As discussed above, see supra note 20, Hilda did not challenge 

Semone and Ziona’s marriage, although she knew how to do so and had more than 

sufficient time (27 years) to take that action had she wished to object. Moreover, 

Chertok, Estate of Goldman, and other cases relied on by the Commissioner have 

been criticized as reflecting a fundamental misunderstanding of the get and Jewish 

law. See J. David Bleich, “Jewish Divorce: Judicial Misconceptions and Possible 

Means of Civil Enforcement,” 16 Conn. L. Rev. 201, 215-226 (1984).
- 39 -

[*39] Regs., which expressly adopts a place of celebration rule for Federal tax 

purposes, with the caveat that foreign marriages must be recognizable in at least 

one State.

Nevertheless, we emphasize that our ruling in this case is a narrow one. It 

addresses only our view on the New York Court of Appeals’ expected recognition 

of Semone and Ziona’s marriage, celebrated in Israel, uncontested for many years 

by the previous spouse, and left undisturbed by the New York courts. We make no 

broad pronouncements on how couples may or may not obtain valid divorces in 

New York. New York courts of course remain open to hear challenges by an 

existing spouse who believes that his or her current marriage is adversely affected 

(or not) by a subsequent marriage. As New York courts have observed, a spouse in 

those circumstances “may, without difficulty, maintain an action for declaratory 

judgment declaring the invalidity of a subsequent marriage or may * * * sue to 

annul the second marriage.” Goldwater v. Goldwater, 180 N.Y.S.2d 383, 385 (1st 

Dep’t 1958); see also Rosenbaum v. Rosenbaum, 309 N.Y. 371, 377 (1955) 

(noting that “[a] simple action for declaratory judgment” would be available to 

wife “at all times” if husband obtained a Mexican divorce and attempted to 

remarry). 
- 40 -

[*40] In short, we conclude that, on the facts before us that are not reasonably 

subject to dispute, the New York Court of Appeals would recognize Semone and 

Ziona’s Israeli marriage and would treat Ziona as Semone’s surviving spouse. 

B. New York Presumption in Favor of Second Marriage

Our conclusion here is buttressed by New York law’s presumption in favor 

of the validity of a second marriage.25 As the Second Circuit explained in Grabois

v. Jones, 89 F.3d 97, 100 (2d Cir. 1996):

[I]t is * * * well established New York law that when a court is 

confronted with the claim that a formal second marriage is invalid 

because of the existence of a valid first marriage, a strong 

presumption of validity attaches to the second marriage. See, e.g., 

Seidel v. Crown Indus., 132 A.D.2d 729, 730, 517 N.Y.S.2d 310, 311 

(3d Dep’t 1987); Frassetti v. Frassetti, 57 A.D.2d 826, 826, 394 

N.Y.S.2d 65, 65 (2d Dep’t 1977); In re Estate of Bihanskyj, 55 

A.D.2d 836, 837, 390 N.Y.S.2d 322, 323 (4th Dep’t 1976). The 

presumption of the validity of the second marriage, moreover, grows 

stronger and stronger where a substantial injustice would be created 

by invalidating that marriage. See Dolan v. Celebrezze, 381 F.2d 231, 

237-38 (2d Cir. 1967) (Friendly, J.) (canvassing New York cases and 

noting that the presumption favoring the validity of the second 

marriage varies in its force with the attendant facts and 

25For a civil case, the Federal Rules of Evidence provide that State law 

governs the effect of a presumption with respect to any claim or defense for which 

State law supplies the rule of decision. Fed. R. Evid. 302; see also sec. 7453 

(providing that Tax Court proceedings are conducted in accordance with the 

Federal Rules of Evidence). Additionally, “[t]he party against whom a 

presumption is directed has the burden of producing evidence to rebut the 

presumption. But this rule does not shift the burden of persuasion, which remains 

on the party who had it originally.” Fed. R. Evid. 301. Under our Rule 142, the 

Estate has the burden of proving that it is entitled to the deduction.
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[*41] circumstances). “[T]he decisions that have held the second marriage 

to be valid on the basis of the presumption are explicable in terms of 

effectuating a particular public policy such as upholding legitimacy 

[or] favoring the participation in the decedent’s estate of one who 

lived with him as his spouse . . . .” Id. (emphasis added).

Moreover, “where, as here, the party actually challenging the validity of the 

marriage is a total stranger to the marital relation, the presumption becomes even 

stronger.” Matter of Seidel v. Crown Indus., 132 A.D.2d 729, 730 (3d Dep’t 1987) 

(citing Matter of Meltzer v. McAnns Bar & Grill, 85 A.D.2d 826 (3d Dep’t 1981),

Matter of Esmond v. Lyons Bar & Grill, 26 A.D.2d 884 (3d Dep’t 1966), and 

Matter of Inkpen v. Lehigh Constr. Co., 12 A.D.2d 692 (3d Dep’t 1960), appeal

denied, 9 N.Y.2d 609 (1961)).

The party challenging the marriage has “the burden to rebut the strong 

presumption.” See id. at 730. It is not entirely clear whether the “burden of 

persuasion is set at a clear and convincing standard or something less stringent.” 

Matter of Gomez v. Windows On World, 23 A.D.3d 967, 969-970 (3d Dep’t 2005) 

(comparing Matter of Seidel, 132 A.D.2d at 730, and Matter of Esmond, 26 

A.D.2d at 884-885, with Matter of Brown, 40 N.Y.2d 938, 939 (1976), and Steele 

v. Richardson, 472 F.2d 49, 52-53 (2d Cir. 1972), and citing generally Dolan v. 

Celebrezze, 381 F.2d 231 (2d Cir. 1967)). But, to carry the burden, the challenger 

is required to disprove “every reasonable possibility which would validate * * * 
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[*42] [the challenged] marriage.” Matter of Seidel, 132 A.D.2d at 730 (citing 

Matter of Esmond, 26 A.D.2d 884, and 45 N.Y. Jur. 2d, Domestic Relations, secs. 

77-78, at 376-379); see also Matter of Brown, 40 N.Y.2d at 939 (“[T]he 

presumption in favor of the validity of the second marriage is a powerful one, 

requiring ‘strong and satisfactory’ proof to the contrary from one who would attack 

it (Whittley v Whittley, 60 Misc. 201, 203) ‘even though this might require the 

proof of a negative’ (Apelbaum v Apelbaum, 7 AD2d 911; see, also, Matter of 

Dugro, 261 App Div 236, affd 287 NY 595; Boyd v Boyd, 252 NY 422)[.]”). 

As the challenger of the Israeli marriage, the Commissioner would have the 

burden to rebut the presumption, which would be “even stronger” given that he is 

“a total stranger to the marital relation.” Matter of Seidel, 132 A.D.2d at 730. The 

Commissioner contends that the burden is met by the 1976 declaratory judgment 

issued by the Supreme Court of the State of New York finding that Semone’s 

marriage to Hilda was not legally dissolved, that Semone’s marriage to Katia was 

null and void, and that Semone was the lawful husband of Hilda. The declaratory 

judgment order provides proof of where things stood as of 1976, when Semone’s 

marriage to Katia was declared invalid. But it provides no proof about where 

things stood by 1987, more than a decade later, when Semone married Ziona in 

Israel. Put another way, the declaratory judgment order issued in 1976 tells us 
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[*43] nothing about whether Semone and Hilda obtained a judicial divorce 

between 1976 and 1987. On brief, the Commissioner asserts he “conducted a 

search of New York state court records” that turned up no evidence of a divorce 

between Semone and Hilda. Even accepting that assertion as true,26 we do not 

think it would be sufficient to carry the Commissioner’s burden. 

As then-Judge Sotomayor observed in Metropolitan Life Insurance Co. v. 

Jackson, 896 F. Supp. 318, 321 (S.D.N.Y. 1995), “a more extensive search of all 

locations where the marriage could have been dissolved is necessary to prove the 

negative that a dissolution of a marriage did not occur.” Here, Semone’s actions 

demonstrate that he was willing to travel outside of New York to obtain a divorce. 

For example, as already discussed, Semone went to Mexico to obtain a unilateral 

civil divorce from Hilda in 1967. Although that divorce was ultimately 

disregarded by New York, Semone’s efforts suggest that Mexico is a “location[]

where the marriage could have been dissolved,” in a later year. See id. New York

recognizes bilateral Mexican divorces--i.e., divorces in which at least one party to 

a marriage appears in person before a Mexican court and the other party appears 

26As the Estate has pointed out, statements in briefs are not evidence. See

Rule 143(c); see also Niedringhaus v. Commissioner, 99 T.C. 202, 214 n.7 (1992). 

Moreover, the Commissioner’s description of his search is too vague to inform the 

Court of what exactly was done.
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[*44] either in person or through an attorney, see Rosenstiel v. Rosenstiel, 16 

N.Y.2d 64, 74 (1965)--and so one cannot preclude the possibility that Semone and 

Hilda dissolved their marriage through a bilateral civil divorce in Mexico or in 

another jurisdiction before 1987. 

Moreover, the Commissioner’s task of proving the negative becomes that 

much harder when considering that Hilda in her income tax returns for many years 

reported under penalties of perjury being single (not married filing separately). 

Having filed those returns, even Hilda likely would be precluded from challenging 

Semone’s marriage to Ziona under New York law. The New York Court of 

Appeals has been clear on this point: “A party to litigation may not take a position 

contrary to a position taken in an income tax return[.] * * * We cannot, as a matter 

of policy, permit parties to assert positions in legal proceedings that are contrary to 

declarations made under the penalty of perjury on income tax returns.” MahoneyBuntzman v. Buntzman, 12 N.Y.3d 415, 422 (2009); see also, e.g., Ponorovskaya 

v. Stecklow, 45 Misc. 3d 597, 608-609 (N.Y. Sup. Ct. 2014) (applying place of 

celebration rule and holding that plaintiff’s “tax returns must be seen as proof that 

neither she nor the defendant considered themselves to be legally married”). Hilda 

also made no statutory claim to elect against Semone’s will, notwithstanding the 

size of the estate. And she did not otherwise challenge Semone and Ziona’s 
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[*45] marriage, although she knew how to do so. Finally, both Semone and Hilda 

are now dead, so their testimony on this issue is no longer available. 

Significantly, Semone and Ziona’s marriage resulted in two children and 

lasted for 27 years. These are exactly the types of facts that, according to 

Judge Friendly’s analysis in Dolan, explain the cases in which New York courts 

have found the presumption applicable. See Dolan, 381 F.2d at 237-238 (“[T]he 

decisions that have held the subsequent marriage to be valid on the basis of the 

presumption are explicable in terms of effectuating a particular public policy such 

as upholding legitimacy * * * [or] favoring the participation in the decedent’s 

estate of one who lived with him as his spouse[.]”); see also Steele, 472 F.2d at 53 

(applying the presumption in a case under the Social Security Act and “see[ing] 

little virtue in straining to hold the presumption of a valid later ceremonial 

marriage rebutted in order to deny a surviving spouse her claim to financial support 

after some period of cohabitation”). 

These circumstances easily distinguish this case from those in which the 

presumption was overcome when either the first spouse or children from the first 

marriage successfully maintained that the first marriage remained valid. See, e.g., 

Dolan, 381 F.2d at 238 (finding that decedent’s wife from his first marriage was 

entitled to widow’s benefits where “no spouse or child of the second [marriage] 
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[*46] can be adversely affected”); Matter of Terry, 32 Misc. 2d 470 (N.Y. Sur. Ct. 

1961) (finding that presumption was overcome in a contest between first wife and 

second wife for letters of administration where first wife testified that no divorce 

proceedings had been instituted to terminate the first marriage).

Matter of Meltzer, 85 A.D.2d 826, is instructive in considering how the 

presumption in favor of the second marriage is applied. There the Workers’ 

Compensation Board awarded benefits to a decedent’s second wife. The 

decedent’s employer and its insurance carrier objected, arguing that the second 

wife was not the decedent’s widow, as required by the relevant statute. Id. at 826. 

The record in the case revealed that the decedent’s first wife had obtained a 

Mexican divorce in which the decedent did not appear. Such a divorce was invalid 

under New York law.27 See Rosenbaum, 309 N.Y. at 374-375 (noting that an ex 

parte Mexican divorce is a “complete nullity” under New York law). Despite this 

record evidence, the board “found the [second] marriage to be valid and * * * [the 

second wife to be] the legal widow.” Matter of Meltzer, 85 A.D.2d at 826. The 

New York Appellate Division upheld the board’s decision: “There is an extremely 

27Indeed, the divorce at issue in Matter of Meltzer v. McAnns Barr & Grill, 

85 A.D.2d 826 (3d Dep’t 1981), was the same kind as the one Semone obtained in 

Mexico with respect to Hilda in 1967 before marrying Katia and that the 1976 

declaratory judgment issued by the Supreme Court of the State of New York found 

to be invalid.
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[*47] strong presumption of validity where there is a ceremonial marriage, and a 

stranger to the marital relationship has a heavy burden to establish its invalidity 

(Matter of Esmond v. Lyons Bar & Grill, 26 A.D.2d 884). The board could 

properly find on this record that the burden was not met here.” Id. In short, on 

weaker facts than those before us, the second marriage was respected under New 

York law.

Based on the foregoing, in our view, even if the New York Court of Appeals 

did not fully resolve this case under the place of celebration rule recognized in Van 

Voorhis and its progeny as discussed above, see supra Part III.A, it would likely 

resolve the case in the Estate’s favor based on the New York law presumption in 

favor of the second marriage.

C. Proper Relationship Between Federal and State Courts

Our conclusion also properly takes into account the oft-expressed concern 

that “Congress did not intend that the Commissioner in making tax determinations 

around marital status, or the courts in passing upon them, should set themselves up 

as domestic relations tribunals.” Estate of Borax v. Commissioner, 349 F.2d 666, 

676 (2d Cir. 1965) (Friendly, J., dissenting); see also Lee v. Commissioner, 64 

T.C. 552, 557-558 (1975), aff’d, 550 F.2d 1201 (9th Cir. 1977). The parties most 

keenly interested in the status of Semone and Ziona’s marriage--Semone, Ziona, 
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[*48] and Hilda--did not challenge the marriage. Nor has any New York or other 

court found the marriage invalid.28 In these circumstances, like the Second Circuit 

in Estate of Spalding, 537 F.2d at 669, we are “unwilling[] on this record to

assume the responsibility for declaring that * * * [Semone] and * * * [Ziona] were 

not husband and wife in * * * [New York].” 

IV. Conclusion

The Commissioner’s motion asks us to find that Semone and Hilda were 

never divorced for purposes of New York law, with the result that Semone and 

Ziona could not validly marry. But by focusing on the divorce and its validity in

28This was a critical element of our and the Second Circuit’s decision in 

Estate of Goldwater. In that case, the Supreme Court of the State of New York 

(the trial court in that State) had declared that the first wife was, and at all relevant 

times had been, the lawful wife of the decedent and that the decedent and the 

purported second wife had never been husband and wife. Estate of Goldwater v. 

Commissioner, 64 T.C. 540, 542 (1975), aff’d, 539 F.2d 878 (2d Cir. 1976). The 

New York Supreme Court had also declared null and void a unilateral divorce 

obtained by the husband in Mexico, so that under New York law there was no 

valid divorce when decedent died. Id. at 547. Moreover, the first wife had filed 

notice to take an elective share of the decedent’s estate, and that claim was settled 

by the estate for a considerable amount. Id. at 543. Furthermore, the estate at 

issue was administered by the State of New York. On these facts, the Second 

Circuit “consider[ed] that there is no alternative but to follow the law of New York 

and hold that * * * [the first wife] is * * * [decedent’s] ‘surviving spouse’ and that 

* * * [the purported second wife] does not qualify as such within the meaning of 

section 2056.” Estate of Goldwater v. Commissioner, 539 F.2d at 881. But we do 

not have in the case before us any ruling by a New York court concerning the 

validity of Semone and Ziona’s Israeli marriage. Accordingly, our hand is not 

forced to follow a local court’s ruling.
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[*49] New York, the Commissioner asks the wrong question and gets the wrong 

answer. By contrast, the Estate properly focuses on Semone and Ziona’s marriage

and asks us to conclude that it was lawful based on New York’s place of 

celebration rule, which makes Ziona the “surviving spouse” of Semone for 

purposes of section 2056(a). For the reasons described above, we agree with the 

Estate’s approach. We therefore will deny the Commissioner’s motion for partial 

summary judgment and will grant the Estate’s motion for partial summary 

judgment. 

To reflect the foregoing,

An appropriate order will be issued.