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Complexities of International Probate and Family Law

International law matters that involve parties in different countries can be very complex with a multitude of factors that affect how the legal action will be carried out. In In re Estate of Salathe, 703 So. 2d 1167 (Fla. 2d DCA 1997), a couple seeking divorce while residing separately in Florida and Germany experienced some of these complications when it came to their probate matters after the wife had passed away.

In the Salathe case, a husband and wife residing in Germany separated after a few years of marriage. The couple entered into a written mutual agreement stating that their marriage was ended but they did not file for legal divorce. Upon their separation, the husband moved to Florida and resided in property owned by the decedent there.

Shortly thereafter, the husband filed for divorce from his wife in Florida. The court in Florida determined that Germany was the proper venue for a divorce action between the parties and dismissed the husband’s action.

At the same time, the wife was seeking a divorce from her husband in Germany, but the courts there were unable to obtain jurisdiction over the husband because he was then residing in Florida. Accordingly, no order or final decree of divorce was entered as to the couple in either Florida or Germany. The couple was still legally married.

Although the wife was unable to obtain a divorce, she did execute a holographic will in Germany which disinherited her husband and left her entire estate to their child. The will explicitly spelled out the husband’s conduct during the marriage as the reason for her specific intent to disinherit him.

While the wife/decedent had tried to make proper arrangements, the former couple was not legally divorced and the holographic will was invalid in Florida. (See hyper link to Holographic Will Article for more details on holographic wills.) Therefore, the husband filed a petition for ancillary administration in Florida to inherit the decedent’s Florida property.

The probate court in Florida addressed both issues. The court found that the decedent’s holographic will was without force or effect under Florida law. (See hyper link to Holographic Will Article) Without a valid will to dispose of her Florida property, the decedent is considered to have died intestate (without a will) as to that property. Under Florida’s intestacy laws, a surviving spouse is entitled to a specific share of the decedent’s estate.

Pivotal to the outcome of the case, then, was whether or not the couple was still married in order for the husband to inherit his intestate spousal share of the Florida estate. The husband argued that Florida law should apply to this determination as well.

Without judicial process and a divorce decree, the husband would be considered the decedent’s surviving spouse. However, because the parties were married in Germany and their entire marriage and separation took place in Germany, the court decided that German law should be applied to determine the status of the parties’ marriage.

In this case, German law is similar to Florida law in that parties are not legally divorced unless a final divorce judgment is judicially rendered. As a result, the court found that the husband was indeed the decedent’s surviving spouse and was entitled to the intestate share of the Florida estate under Florida law.

This case is just one of many examples in which a complicated legal issue is made more difficult by improper preparation and unfinished business. International law requires the invaluable knowledge of lawyers who have experience in these legal issues so that all probate matters are handled according to your wishes.

We encourage you to explore our websites – www.urbanthier.com (United States office) and www.urbanthier.de (German office) to learn more about Urban Thier & Federer, P.A., Urban Thier & Federer, Rechtsanwälte, and their attorneys and practice areas. Urban Thier & Federer, P.A.’s representation of buyers includes litigation of cases in state court, federal court and arbitration proceedings. We encourage you to become informed of your rights and options. You should also ensure that any law firm you consult or retain to represent you has the experience, resources and ability to take your case through trial and appellate courts, if necessary.

Please note that Urban Thier & Federer, P.A. does not represent you and cannot take any action on your behalf unless and until you enter into a formal written Legal Representation Agreement.

Christian T. Fahrig; Carl Christian Thier

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