After Shira’s mother passed away a few years ago, her father met a new woman, and she moved into his home. Shira is trying to convince her father to prepare a prenuptial or cohabitation agreement and make a will, in which he declares his wishes for the distribution of his property. But he refuses to do so, maintaining that his partner won’t ask for anything if they separate or if he dies.
Shira (a pseudonym) and her siblings are worried. Their father is not young, and if there is no will, half of his property will go to his new partner when he dies, which could happen relatively soon. The siblings realize that even though that is not their father’s desire, a substantial part of their inheritance is in danger. The fact that they will be forced to share his assets with his partner is a recipe for disagreements and quarrels. A simple document could have settled matters in a way that would reflect his real wishes.
The behavior of Shira’s father is naïve, but it’s typical of many families. Because his partner is a common-law wife, under Israel’s inheritance laws she will inherit half of Shira’s father’s property, as long as there is no will that says otherwise. That is her legal right, without her having to prove that she and Shira’s father had any intention of sharing assets. As long as there is no prenuptial or equivalent financial agreement between them, his partner can demand her right to share his property by virtue of their partnership. This is true even if the couple had already separated – although in that case, it would be more difficult for her to win the claim.
“In order to be granted [a share of assets] by virtue of a romantic relationship, you have to demonstrate investment in an asset and a desire to share. But in terms of the inheritance laws, if we are referring to a cohabitating couple, the partner has a right to his or her share of the inheritance,” says attorney Judith Meisels, who specializes in family law. “That’s the dangerous part. In effect, those who live as common-law couples without marriage are the group that is most in need of a contractual arrangement for their relationship.”
Meisels says that many people are unaware of the fact that the Inheritance Law includes a special clause that gives common-law partners rights that are equal to those of married spouses. “If there’s no will, and many Israelis don’t have one, common-law partners inherit as though they were married,” she says.
Common-law partners are couples who share a household like married couples, without formally marrying. There is no minimum amount of time for acquiring common-law status, but the shorter the period of time, the greater the burden of proof on the person claiming a common-law relationship. In order to be considered common-law partners there is no need for a joint bank account or even a shared residence.
In order to prevent a new partner from inheriting, or from demanding a share of the assets in the case of a breakup, assets can be registered in the name of the children, or other family members. That was what one widower did, after the death of his wife and before his second marriage. The widower registered his own home in the name of his adult children. The agreement also stated that he could live there for the rest of his life and that his wife could live in the house for a specified number of years after his death.
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After his death, and after the years of residence granted to the wife had passed, his children sued to receive the house. The wife petitioned to have the transfer of rights to his children revoked, but she lost the case. The ruling, handed down in the Tel Aviv District Court about a decade ago, stated that the deceased’s attitude toward his house – both in the prenuptial agreement and in his will – indicates that he recognized that the home belonged exclusively to his children and that he couldn’t sell it.
That’s why he also left the rest of his property, minus the house, to his partner, while he was still alive. But registering assets in the children’s name is not always the recommended method, and in complex situations problems could arise that could not have been anticipated.
A prenup isn’t enough
Meisels says that usually she won’t advise people to get rid of their assets while they are still alive – even if that provides protection. “I encountered a mother who gave more and more of her assets to her children and in the end a custodian had to be appointed for her and she couldn’t afford an assisted living facility. If a parent transfers her apartment to her children, she has to be protected in the contract.”
It can be decided, for example, that the parent can live in the property for the rest of her life free of charge, as happened in the case of the widower who transferred his house onto his children’s name. However, if the parent wants to move to an assisted living facility, and in order to pay the deposit has to sell the house, he or she could have a problem.
Meisels says that when it comes to potential conflicts between new partners and children from a previous marriage – and there are many such cases – it is important to negotiate a legal arrangement that will combine a financial prenuptial agreement and a will, and there is also the option of using an important legal tool called a mutual will.
“For example, in parents’ mutual wills it can be decided that after the death of one of them the apartment will belong to the remaining parent, and after their death, to the children. But the main problem is that Israelis don’t tend to write wills, especially compared to Americans. And then things begin to get complicated.”
It doesn’t take a second life partner to cause a family dispute over property. Mere co-habitation can leave room for legal clashes.
When the lifestyle of an unmarried couple indicates joint finances, the default choice, which is called the “presumption of partnership,” is that all the assets and property accumulated during their life together are jointly owned.
When it comes to a married couple, the Property Relations Law determines that each member of the couple is entitled to half the value of all the shared assets, but assets brought to the marriage by one of the partners, or obtained through inheritance or as a gift, are excluded from this partnership. However, there are cases in which the courts will also recognize a property purchased by one of the parties prior to the marriage, or inherited during the course of the marriage – as shared.
Prof. Shahar Lifshitz of Bar-Ilan University, who has written books about cohabitation law in Israel, explains that in certain cases, a couple cohabitating in a residence owned by only one partner can show proof of their intention to share. He says that there are several approaches to this subject, the central one being that a joint investment during the relationship can prove an intention to share. In the case of a long first marriage and a single residence, the rules were even eased so that partnership would be easier to prove.
One case that reached the High Court of Justice involved a couple living in an apartment registered in the man’s name. After living there for 16 years (during which time the woman moved out for a certain period) they separated once and for all, and the woman asked for half the rights to the apartment, even though it was registered to only the husband about four years before they married.
In a ruling handed down in 2013 the majority decided that the woman is entitled to half the apartment. Then-Supreme Court Justice Yoram Danziger ruled that the partner petitioning for half the home is obligated to prove – beyond the existence of a joint married life, even if it was long – the existence of “something more” that would prove the intention of sharing the specific asset.
He noted that a perusal of the ruling indicates that in most cases in which the courts accepted the claim of partnership, it was proven that there had been monetary investments in the asset by the partner making the claim, and these investments constituted “something more” that proves the intention of sharing. However, there could be other circumstances that prove “something more,” such as promises or visible proof.
In this case the family court ruled that the woman had proven her claim regarding the intention of the parties to sell the residence and to use the proceeds, along with joint savings, in order to purchase a new joint residence. It was also ruled that the woman’s return to the apartment was based on an explicit promise by her husband to sell the apartment. Therefore, it was decided that she had proven a specific intention of sharing the asset, which was not based only on wishful thinking.
Danziger was joined by Justice Isaac Amit, who also proposed various criteria to help decide when the parties indicate a clear intention of sharing the residence. For example, whether the other partner also has a residence or another asset that they brought with them into the marriage and that remains registered in their name; the duration of the marriage; whether there was a mortgage on the residence that was paid off jointly by the couple over the years; whether there was a general atmosphere of sharing and joint effort; or whether there was a massive renovation or a significant addition to the residence that was paid for by both partners.
In any case he stressed that this is not an absolute list, and every case needs to be discussed on its own merits. The third justice on the panel, Zvi Zylbertal (who has since retired) ruled that in this case “something extra” had not been proven, and this was not a married life characterized by joint finances, but he remained in the minority.
Infidelity and inheritance
Another case over splitting an asset registered in the name of one of the partners, which was widely covered in the media, was dubbed “the cheating wife.” In 2021 an expanded panel of High Court justices (an additional discussion of a ruling handed down by the court) decided that a woman who cheated on her husband cannot be denied her right to half their joint home. The house was built on a lot the man inherited before his marriage and was registered in his name only. The ruling was handed down by a panel of nine justices; three were in the minority.
The High Court recognized the fact that the woman’s right to half the home was based on the couples’ entire shared life, and could not be retroactively denied due to adultery. Supreme Court President Esther Hayut ruled that the Rabbinical High Court erred when it ruled that sexual infidelity can be a basis for nullifying an intention to share.
She added that there are exceptional and extreme circumstances that would make it possible to deny these rights. For example, if one partner conducted a “double life” without the other’s knowledge, the latter could claim that had they known about the cheating they would not have decided to share the asset. Justice Daphne Barak-Erez ruled that sexual infidelity is not a reason for revoking joint ownership of an asset acquired during a long relationship.
Meisels stresses that in order to be completely protected, a will and a prenuptial agreement (or a financial cohabitation agreement) are needed. That’s because when a person dies, the partner is entitled to demand their share of the property accumulated during the relationship – even if they were excluded from the will. “To my regret, most people don’t prepare either of these documents,” she said.
One of the extreme cases that reached the court involved a married couple who addressed division of property in their prenuptial agreement, but neither of whom had made a will. The man died at an early age, after a sudden stroke a week before the couple’s divorce proceedings were completed with a get (religious divorce). His family turned to the court claiming that the parties had signed a divorce agreement that was legally valid, considered themselves divorced and were already living apart, and that therefore they were his heirs rather than his former partner.
The family court decided in 2010 that even if civil law does not recognize the validity of the divorce because it was not completed, that does not justify ignoring the pending divorce’s implications for property issues. This was because the couple’s conduct left no doubt that they unequivocally intended to separate, and this intention was even carried out. “In that case that I handled, the court used a creative civil interpretation of the component ‘partner’ in the Inheritance Law, and ruled that since the Inheritance Law is a civil law, separation is sufficient to determine that the partnership had ended,” explains Meisels.
Lifshitz notes that the ruling treated the couple as divorced for the purpose of inheritance laws, but said, “On this subject there are contradictory rulings, and it awaits a Supreme Court decision. Meanwhile, in a case of separation, it is crucial to make a will in order to ensure that the former partner won’t be an heir against your will.”