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Property and Succession Rights of a Common-Law Souse Under Israeli Law

Sonia Shnyder, Adv.
Zell, Goldberg & Co.

September 2005

A frequently arising question in estate planning concerns the rights of the Israeli counterpart of a common-law spouse with regard to each other’s property. Common law spouses, known in Israeli law as yaduim be-tsibur (“publicly known as spouses”) may enjoy certain rights in the property of each other, which become relevant upon the couple’s separation or one spouse’s death. In principle, property rights between common-law spouses during lifetime (and thus the extent of the estate of each upon death) may be regulated by way of a property agreement.

Property Rights of a Common-Law Spouse during Lifetime

Community of Property Presumption

The Israel regulatory regime governing the status of common-law spouses and their property rights acquired during each other’s lifetime derives from case law, since the Marital Property Law – 1973, which regulates the division of marital property between spouses, applies only to married couples and thus has not changed the law with regard to common-law spouses.^{^[1]} The regime governing succession will be discussed separately below. Israeli courts have developed a presumption of community of the spouses’ property regardless of property registration (חזקת שיתוף). The presumption of community of property applies to married couples outside the scope of the Marital Property Law and also applies to common law spouses.^{^[2]}

For the presumption to apply, there must exist an intention to create community of property. This intention is inferred from the couple’s peaceful family life and joint effort, where each partner makes his contribution. As a general rule, the intention to create community of property is deemed to exist where the spouses have lived together for a prolonged period of time, kept a joint household, joined efforts in obtaining family income in joint effort and paid their expenses out of common pool.^{^[3]} A family court will examine the factual situation to see if the communal property presumption applies in light of the relationship between the spouses and the requisite communal property intention.^{^[4]} Criteria for family life and common household are subjective, not objective.^{^[5]}

The presumption of community of property can be rebutted by appropriate factual evidence. Thus, notwithstanding evidence of regular family life and joint effort, the presumption can be rebutted, and not be deemed applicable, if the circumstances demonstrate lack of intent to create community of property, for example the spouses’ consistent conduct in meticulously keeping their property separate.^{^[6]}

In principle, common law spouses face a somewhat heavier evidentiary burden to prove the intention to create joint property.^{^[7]} Although case law set no minimum requirement regarding the period of family life requisite for the creation of community of property regime, the lesser the period, the heavier the burden.^{^[8]}

However, once the appropriate factual framework is established, the property rights of common law spouses arising under the community of property regime have been broadly construed, including not only assets serving the family, such as the joint residence, but even business assets.^{^[9]}

Property Agreement between Common-Law Spouses

Common-law spouses can regulate the property regime between them by way of a property agreement. A property agreement between common law spouses regarding non-community of their property is valid and does not require court approval. The court would recognize the provision of the property agreement regarding separate property especially in light of the couple’s conduct in carefully preserving the separation of property.^{^[10]}

Succession Rights of a Common-Law Spouse

Common Law Spouse for Succession Purposes

Succession rights of a common-law spouse are governed by the Succession Law – 1965. A common-law spouse in the sense of the Succession Law is the decedent’s partner who led a family life with the decedent in a common household, where neither partner was married to any third party. The surviving common-law spouse is deemed to have been bequeathed by the decedent the same portion that the survivor would have received, had they been married, unless there is an express or implied provision to the contrary in the decedent’s will.^{^[11]}

The definition of a “common law spouse” for succession purposes does not coincide with a common law spouse for marital property rights purposes in that the Law requires a common law spouse not to be married to another person and does not require the couple to be known as spouses amid any acquaintance. The decisive elements for succession purposes are the couple’s family life and common household.^{^[12]}

Thus, once the status of a common law spouse for succession purposes is established and absent a contrary provision of the will, the common law spouse inherits under intestate succession as if he or she were married to the decedent.

Spouse’s Rights under Succession Law

Under the Succession Law – 1965, the spouse inherits household chattels, including the family automobile.^{^[13]} In the event the decedent left children, as in this case, one half of the estate goes to the spouse and the other half is divided between the children in equal shares.^{^[14]} A special provision regarding the residential apartment, according to which the spouse who has been married to (or, in the case of a common-law spouse, has lived with^{^[15]}) the decedent for at least three years prior to the decedent’s death inherits all of the decedent’s rights in their joint residence, applies only to the situation where the decedent left no children (nor parents), so that the estate is divided between the spouse and the decedent’s siblings or grandparents.^{^[16]}

The fact that each of the common law spouses owned an apartment of his own does not, by itself, preclude the application of this rule to the couple’s common residence.^{^[17]} A provision in a property agreement between granting the common law spouse a life right to reside in the apartment does not, by itself, limit, or rule out, the application of the statutory provision (i.e., section 55) equating the common-law spouse’s rights with those of a married spouse.^{^[18]}

Spouse’s Tenancy Rights in respect of Residential Apartment

As a provisional measure with regard to a residential apartment, any person who, prior to decedent’s death, lived with the decedent in the apartment owned or rented by the decedent, may continue residing in the apartment for three months or, if an heir, for six months.^{^[19]}

Surviving spouse has the right to continue residing in the apartment owned by decedent or leased long-term (over 25 years), in which he lived with the decedent as tenants of such hers whose portion the apartment became; the rent and the terms of the lease will be agreed on in an agreement between the spouse and the heirs or absent such agreement will be set by the court.^{^[20]} The court may rule that only absent an apartment of his own may a spouse reside in such apartment.^{^[21]}

Spouse’s Right to Maintenance

In addition, a surviving common-law spouse in the sense of the Succession Law (i.e. an unmarried partner living a family life in a common household and not married to a third party) is entitled to maintenance to the same extent as a married spouse.^{^[22]} Moreover, as a provisional measure, any person who lived with and depended on decedent for maintenance, is entitled to maintenance from estate for one month, without prejudice to inheritance rights or continued residence rights.^{^[23]}

Estate Planning Recommendations

While the application of the community of property presumption requires a certain factual basis and is not automatic, there remains a possibility that such presumption would be applied to a common law spouse, entitling him to the other spouse’s assets. Therefore, to rule out such possibility, it is recommended that the partners conclude a property agreement providing for keeping their property separate.

Succession rights of a common law spouse depend on the absence of a testamentary provision to the contrary. Therefore, it is recommended that the partners make wills expressly bequeathing the property as they wish and leaving no room for intestate succession.

^{^[1]} A. Ben Dror, Cohabitation in Israel, 2000, 103.

^{^[2]}Civil Appeal 52/80, Shachar v. Friedman. Ben Dror, 109.

^{^[3]} Civil Appeal 52/80, Shachar v. Friedman.

^{^[4]} Ben Dror, 112.

^{^[5]} Civil Appeal 79/83 Attorney General v. Shukran.

^{^[6]} Civil Appeal 52/80 Shachar v Friedman.

^{^[7]} Ben Dror, 116.

^{^[8]} Family case (TA) 10163/98 A. v. B.

^{^[9]} Civil Appeal 4385/91 Selim v. Karmi.

^{^[10]} Family case (TA) 39550/98 A v B.

^{^[11]} Section 55 of the Succession Law – 1965. Civil Appeal 7210/96 Greenberg v Greenberg (section 55 applies only if there is no express or implied provision to the contrary in the will).

^{^[12]} High Court of Justice Case 673/89 Meshulam v High Rabbinical Court.

^{^[13]} Section 11(a) of the Succession Law.

^{^[14]} Section 11(a)(1) of the Succession Law

^{^[15]}Section 11(a)(2) of the Succession Law; Civil Appeal 714/88 Shenzer v. Rivlin.

^{^[16]} Section 11(a)(2) of the Succession Law.

^{^[17]} Civil Appeal 79/83 Attorney General v. Shukran.

^{^[18]} Civil Appeal 1717/98 Blau v Pozash.

^{^[19]} Section 108(a) of the Succession Law.

^{^[20]} Section 115 (a) of the Succession Law.

^{^[21]} Section 115 (b) of the Succession Law.

^{^[22]} Section 57(c) of the Succession Law.

^{^[23]} Section 108(b) of the Succession Law.

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