Rubin on Probate Litigation

Cohen v. Shushan , --- So.3d --- (Fla. 2d DCA 2017) In Florida, a "surviving spouse" receives certain benefits- they can take an intestate share of the deceased spouse's estate and they may also be entitled to an elective share, family allowance, homestead and so on. Under principles of comity, Florida courts will recognize the marriage of citizens of a foreign country if that marriage was valid under foreign law.  Here, a surviving child of a decedent and a purported spouse of the decedent disagreed regarding whether a marriage would be deemed valid under Israel law, and as a result whether the marriage should be recognized by the Florida Probate Court for inheritance purposes. After hearing expert testimony on Israeli law, the trial court held that because the surviving spouse would be considered the decedent's "reputed spouse" under Israeli law, she should take under Florida's intestacy law.  A "reputed spouse," translated from Hebr...

Smith v. Smith , 199 So.3d 911 (Fla. 4th DCA 2016) This decision deals with the question of whether a ward's right to marry is subject to court approval during a guardianship proceeding.   Florida Statutes § 744.3215(2)(a) provides: (2) Rights that may be removed from a person by an order determining incapacity but not delegated to a guardian include the right: (a) To marry.  If the right to enter into a contract has been removed, the right to marry is subject to court approval.   The Court held that the plain language of the statute does not state that a "marriage" is subject to court approval, but instead that the "right to marry" is subject to court approval.  Therefore, it held that if a person deemed incapacitated has had his or her right to contract removed, he or she has no right to marry unless the court gives its approval.