Why a Will Alone May Not Protect Your Family Home from Common-Law Claims
A valid will may not suffice to protect family property from a common-law partner's claims. Israeli courts increasingly recognize proprietary rights in pre-owned assets through cohabitation, prompting experts to advise early property agreements.
When an elderly parent finds a new romantic partner, it is usually a joyful occasion. Children are often relieved when a parent enjoys companionship later in life, especially if the parent has drafted a clear will ensuring that the family home—the most significant asset—will pass exclusively to the children. However, legal reality shows that a will alone does not always guarantee that the asset will remain with the designated heirs.
In recent years, Israeli courts have repeatedly ruled that common-law partners may acquire proprietary rights through shared life arrangements, which can ultimately override the instructions of a will. For instance, a recent ruling by Judge Ofra Guy at the Ashdod Magistrates' Court addressed a lawsuit filed by the common-law partner of a deceased woman against her only son. The mother, who passed away in 2019, had willed her apartment—purchased long before the relationship began—to her son. The partner argued that they had lived together as common-law spouses for 21 years and that, under the presumption of community of property, he was entitled to half the apartment. The son contended that the will reflected no intention of sharing and that the relationship was merely one of friendship and tenancy.
The court ruled in favor of the partner, establishing that he proved a specific intention to share the apartment, entitling him to half of the rights. The judge based the decision on at least 15 years of cohabitation, joint travel, family events, and the inscription "my wife" on the deceased's gravestone, while also ordering the son to pay 40,000 shekels in legal costs. Family law expert Adv. Ronen Daliau explains that while community of property was traditionally associated with assets accumulated during marriage, family courts increasingly recognize sharing in pre-owned or inherited assets if specific intent is proven through financial investment or joint financial conduct.
A landmark case reaching the Supreme Court involved a couple who lived for 16 years in an apartment registered solely in the husband's name, purchased four years before marriage. Despite a temporary separation, upon final parting, the woman sued for half the rights. The Supreme Court, by a majority opinion, ruled in her favor. Justice Yoram Dancziger clarified that claiming rights in an asset registered to one spouse requires proving a "something extra" indicating intent to share, such as financial investment or explicit promises. Supreme Court President Yitzhak Amit concurred, listing indicators like joint mortgage payments, substantial renovations, or a general atmosphere of mutual effort, though emphasizing that each case is evaluated on its merits.
Adv. Daliau stresses that those wishing to protect family property and ensure assets remain with their children cannot rely solely on a will. The proper legal path is to prepare in advance through a property agreement or a cohabitation agreement explicitly stating that cohabitation, expense-sharing, or investments do not grant proprietary rights to the other party. Avoiding the mixing of assets, such as using a joint account for a separate property, is equally crucial. Early and precise legal structuring prevents severe disputes between partners and heirs, sparing families lengthy and costly legal proceedings.
