With the rise of globalization, multinational families are becoming more and more common. When family members reside or own property in more than one country, unexpected issues could arise in your estate planning or probate. For example, just last month, there was a Guam Supreme Court decision interpreting the effect of a Guam divorce on a Philippines marriage in a probate proceeding. The issue: whether the foreign marriage was valid.
Joaquin, Nancy, and Elizabeth- an international marriage story
Joaquin petitioned for dissolution from his wife Nancy in Guam in 2005. In February 2008, the Superior Court of Guam granted an interlocutory decree stating that “[T]he marriage of Plaintiff and Defendant is dissolved nunc pro tunc as of January 16, 2008, pending the entry of the final judgment.” The decree was not a final judgment of divorce.
Elizabeth and Joaquin were married in the Philippines in 2008. Elizabeth was a national of the Republic of Philippines, while Joaquin had lived in Guam. They obtained a Certificate of Marriage from the Republic of the Philippines and the marriage was solemnized by a ceremony there. After being married, Joaquin obtained permanent resident status in the Philippines.
The Court issued a final judgment of divorce on January 5, 2010. Joaquin passed away in the Philippines in 2011.
After Joaquin passed, there was a questions of who would administer the estate. Elizabeth nominated someone from the Philippines because that is where she was. As his spouse, she would have priority to nominate an administrator over his sons, who wanted to appoint someone else.
Is the foreign marriage valid?
The short answer is yes. But, the courts didn’t get there right away. After a motion for summary judgment from one of Joaquin’s sons the court determined that Guam law did not recognize Elizabeth as Joaquin’s legal spouse because Joaquin’s divorce was not finalized before he married Elizabeth. This means that she did not have priority to nominate an administrator for Joaquin’s estate.
Elizabeth appealed and the Supreme Court of Guam reversed the ruling and remanded the case. The Supreme Court cited Guam’s foreign marriage statute that says a court should apply the law of the place the marriage was contracted. The marriage was contracted in the Philippines, so the law of the Philippines applies. The Philippines does not allow divorce, but they do recognize foreign divorces if the foreign law allows it. Further, in the Philippines, for a remarriage to be valid with a party having only obtained an interlocutory decree (like Joaquin had), the decree must have the same effect as a legal divorce.
The Supreme Court of Guam found that in Guam, the interlocutory degree did have the same effect as an absolute divorce. Therefore, the marriage was valid under Philippines law and valid under Guam’s law as well.
How does Arizona treat foreign marriages?
If you’re wondering how foreign marriages are treated under Arizona law, you’re in luck. Generally, in Arizona foreign marriages and divorces are considered valid unless there’s something clearly disqualifying. Under A.R.S. § 25-112, “Marriages valid by the laws of the place where contracted are valid in this state.” There are a few exceptions though, like incestuous marriages.
But, if you are part of a multinational family and estate planning in Arizona, the validity of your marriage may not be the only issue you should be thinking about.
For example, multinational estate plans might have different estate and gift tax considerations. There might be considerations based on the jurisdiction that the decedents and assets are situated in. Foreign assets can create complexities in estate planning such as inheritance taxes and succession laws. Different rules may apply based on the decedent and their heirs nationality, residency, and domicile. International situs rules (which determine which jurisdiction’s rules apply) may also apply.