Your Father Remarried in Israel: The Widow Takes Half Before the Estate Exists, the Will Cannot Move It, and Two More Claims Come Off the Top

This is orientation, not legal or tax advice. It maps what exists and the questions to take to a licensed professional. It does not tell you what to do about your own estate or taxes.

A father in Netanya dies in April. He was born in Haifa, spent sixteen years in New Jersey with his first wife, an American, and their two children, who were born there and hold US passports. The marriage ended in 2001, he came home, and in 2004 he married Dalia in Tel Aviv. They never signed a property agreement. In 2009 he bought an apartment in Netanya, registered in his name alone. At his death it is worth 4,200,000 shekels, and there is 900,000 shekels at Bank Leumi, also in his name.

He also left a will, signed before a notary in 2018, leaving everything to his son in Hoboken and his daughter in Cherry Hill, in equal shares. The children apply to the Registrar of Inheritance Affairs, the application is published, and nobody objects. The probate order issues in July.

Two weeks later, a letter arrives from Dalia's lawyer. It does not contest the will. It says that Dalia is entitled to half the value of everything the couple accumulated between 2004 and April, that the apartment and the Leumi account are the bulk of it, that this claim has nothing to do with the will and comes before the estate is even calculated, and that she will be staying in the apartment.

The children's Israeli lawyer confirms all four points. The will is valid, the probate order stands, and the will governs about half of what the children thought it did. This page is about why, and about what an American heir can and cannot do once the letter arrives.

Two laws, in a fixed order

An Israeli estate of a married person is divided in two steps, under two different statutes, and the order is not optional.

The first step belongs to the Spouses (Property Relations) Law, 5733-1973. For a couple married from 1 January 1974 onward who never signed a property agreement, section 5(a) provides that when the marriage ends, by divorce or by the death of a spouse, each spouse is entitled to half of the value of the couple's aggregate property, subject to a short list of exclusions. Israelis call this izun mashabim, the balancing of resources. During the marriage each spouse owns what is registered in their own name; the balancing is a deferred right to value that crystallises on the day the marriage ends. When it ends by death, section 5(b) says the heirs step into the deceased spouse's shoes for that right, and the surviving spouse's claim runs against the estate.

The second step belongs to the Succession Law, 5725-1965. Whatever is left after the balancing is the estate, and only then does the question of who inherits it arise. If there is a will, the will governs the estate. If there is none, section 11 gives the spouse the household movables, the family car and half, and the children the other half, as the intestacy page sets out.

	Step one: balancing of resources	Step two: succession
Governing law	Spouses (Property Relations) Law, 5733-1973, section 5	Succession Law, 5725-1965, sections 10 to 17 or the will
What it divides	Value accumulated by both spouses during the marriage	The deceased's own property after step one
Who takes	The surviving spouse, or the heirs against the survivor	Heirs under the will, or the statutory heirs
Does the will affect it	No; it is a property right, not an inheritance right	Yes; this is what the will governs
Where it is decided	Family Court, as a claim against the estate	Registrar of Inheritance Affairs, or Family Court on objection

The father's will was drafted on the assumption that the apartment and the account were his to give. Under Israeli law they were his to own while he was alive and half his to give once he died, because the other half of their value already belonged to Dalia by the operation of a statute the will could not touch.

What is in the pool, and what is not

Section 5(a) excludes three kinds of property from the balancing: property either spouse held immediately before the marriage, property received during the marriage by gift or inheritance, and property the spouses agreed in writing would not be balanced. Rights that the law makes non-transferable are also outside. Everything else accumulated during the marriage, in either name, is in the pool, and that includes pension rights built up during the marriage.

The exclusions matter more in second marriages than in first ones, because second marriages start later and the spouses arrive with property. Three situations come up repeatedly in files with American children.

The apartment was bought before the marriage. If the father had bought the Netanya apartment in 1998 rather than 2009, section 5(a)(1) would exclude it from the pool, and Dalia's balancing claim would reach the Leumi account and the growth in his other assets but not the apartment. That is the statutory starting point. It is not the end of the analysis. Israeli courts recognise a doctrine of specific sharing under which an asset registered in one spouse's name, even one acquired before the marriage, is treated as jointly owned where the couple's conduct shows an intention to share it. The family home is where that finding is most often made, on evidence such as joint funds spent on renovation, mortgage payments from shared income, and long shared occupation. In June 2025 the Supreme Court, in CA 5620/24, held that once sharing intent in an asset is established the division is equal, without carving out the pre-marital value. For an American child assuming the apartment is safely outside the pool because of a purchase date, the honest answer from an Israeli lawyer is that the date helps and the twenty years of shared living may undo it.

Something was inherited or gifted during the marriage. If the father inherited money from his own mother in 2015 and kept it in a separate account, it is excluded. If he moved it into the joint account, used it toward the apartment, or otherwise mixed it with marital funds, the exclusion can be lost. Israeli practitioners describe this as the commingling trap, and it is a question of fact that the children will be arguing from the United States with limited access to the bank records.

The couple married before 1974. Section 14 keeps the balancing chapter away from couples married before the Law came into force. Those couples are governed instead by the community property presumption developed by the Supreme Court, and it is stronger from the children's point of view, not weaker. Under the presumption the sharing is immediate and proprietary: property acquired by joint effort during the marriage belongs to both spouses from the moment of acquisition, whatever the registration says. The Supreme Court applied exactly that logic against an estate in Berger v. Estate Tax Director, holding that an apartment registered only in the deceased husband's name was half the wife's, so that the husband's estate included only half of it. A father who married his second wife in 1971 does not leave the children a full apartment to inherit; he never owned a full apartment to leave.

The couple who married in New Jersey

Many second marriages in these files were celebrated in the United States, not Israel. A father who married his second wife in New Jersey in 2004 and moved to Israel with her in 2010 raises a question American children rarely think to ask: which country's marital property law applies at all?

Section 15 of the Spouses (Property Relations) Law answers that property relations between spouses are governed by the law of their domicile when the marriage was solemnised, unless the spouses agree otherwise under the law of their domicile when the agreement is made. Read alone, that sends a New Jersey wedding to New Jersey law, which has no community property and no balancing. Read with the Supreme Court's decision in Nafisi v. Nafisi, it does not go that far. The majority in Nafisi held that spouses who marry abroad and then immigrate to Israel are presumed, absent evidence to the contrary, to have agreed by their conduct to the Israeli sharing regime for property they acquire after arriving. The court accepted that such an agreement can be implied, and it does not have to be in writing.

The practical result for the family on this page is that an Israeli court would very likely treat the Netanya apartment, bought after the move, as inside the pool. The New Jersey wedding does not save it. What might change the outcome is an actual agreement: a New Jersey prenuptial agreement providing for separate property is evidence of a different intention, and the children should find it, if it exists, before the balancing claim is heard.

The arithmetic

It helps to run the numbers the way the Family Court would, because the American children usually run them the way an American probate court would and arrive somewhere else entirely.

Suppose the apartment and the Leumi account, together 5,100,000 shekels, were all accumulated during the marriage and are all in the pool. Suppose Dalia accumulated 300,000 shekels in her own name over the same years. Balancing is of the aggregate: 5,400,000 shekels, half of which is 2,700,000. Dalia already holds 300,000, so the estate owes her 2,400,000. The estate that remains for the will to govern is 5,100,000 less 2,400,000, or 2,700,000 shekels.

	What the children expected	What Israeli law produces
Father's assets at death	5,100,000	5,100,000
Balancing payment to Dalia (step one)	0	2,400,000
Estate governed by the will (step two)	5,100,000	2,700,000
To the two children under the will	5,100,000	2,700,000
To Dalia in total	0	2,400,000 plus her own 300,000

Two things stand out. First, the will did its job. It gave the children the entire estate. The estate was simply half the size the children assumed, and no drafting could have changed that without Dalia's signature on a property agreement. Second, had there been no will, Dalia would have taken the movables, the car and half of the 2,700,000 under section 11 as well, leaving the children 1,350,000 to share, roughly a quarter of what the letterhead figure suggested. In a second-marriage family the will is the difference between the children taking half and the children taking a quarter, and that is a strong reason to have one, but it is not a device for taking the whole.

The balancing runs in both directions. Under section 5(b) the heirs stand in the father's place. Had Dalia been the spouse who accumulated more during the marriage, the children, as heirs, could bring the balancing claim against her. In blended families where the second spouse was the higher earner, that possibility is worth pricing before anyone agrees to walk away.

Two more claims that come off the top

Balancing is the largest deduction from the American children's expectation. It is not the only one, and the other two also survive the will.

The apartment. Section 115 of the Succession Law gives a spouse who lived with the deceased in an apartment of the estate the right to go on living there. It is a right of occupation, not ownership; the apartment still belongs to whoever inherits it. But the heirs cannot simply require the widow to leave, and a Family Court will not order a sale that puts her on the street. In practice a seventy-year-old widow with a statutory right to stay, and a balancing claim worth half the apartment's value, is not moved out. The file resolves by the children buying her share or by her buying theirs, and the timing is hers as much as theirs. The selling page describes the gates between a probate order and a sale; this is the gate that a will does not open.

Maintenance from the estate. Israel has no forced heirship. A parent may disinherit a spouse or a child by will, and the will stands. The Succession Law's drafters chose a different protection for dependants: Chapter Four gives a spouse, children and, in some circumstances, parents who were financially dependent on the deceased a right to maintenance out of the estate, payable before the residue is distributed, and a will cannot exclude it. For a widow who has received her balancing share and holds a right to the apartment, the claim is usually unnecessary. For a widow whose balancing share was small because the assets were pre-marital or inherited, it is the last line, and the court fixes the amount by need. For adult, self-supporting children in the United States it is almost never available; the American heirs are on the paying side of this claim, not the receiving side.

Together, the order of operations in a second-marriage estate looks like this: the balancing payment first, then the debts of the estate and any maintenance ordered, then the estate to the heirs under the will or under section 11, with the widow living in the apartment throughout.

What the American children can and cannot do

The children's Israeli lawyer will already have said this, but it bears repeating from the heirs' side, because the instinct from the United States is to fight the will's failure, and the will did not fail.

The fourteen-day objection window after publication is for objecting to the probate order itself: that the will is invalid, that the father lacked capacity, that a later will exists. Dalia has no reason to object; she wants the will confirmed, because a will leaving everything to the children still leaves her balancing claim intact and removes the section 11 argument about the car and the movables. Equally, the children cannot use an objection to stop the balancing claim. It is a Family Court claim under a different statute, and the probate order is not a defence to it.

What the children can do is contest the size of the pool. That is where second-marriage balancing disputes are actually fought: whether the apartment was pre-marital and whether specific sharing has been proven; whether an inheritance was kept separate or commingled; what Dalia herself accumulated in her own name, including pension rights, because every shekel on her side reduces the payment from the estate; and whether a property agreement, Israeli or American, was ever signed and confirmed under section 2. Each of those is a question of evidence, and the evidence is in Israel.

What the children should not do is sign a disclaimer or a family settlement to make the problem go away. An Israeli lawyer may suggest that the children waive part of their inheritance in Dalia's favour to settle the balancing claim. For a US person, waiving an inheritance is not a neutral act; the disclaiming page explains when a histalkut becomes a taxable gift, and a settlement that transfers value from the children to the widow can be one. The cleaner structure is usually for the estate to pay the balancing claim as a debt, or for the widow's share of the apartment to be bought out at a stated price, so that the children's American tax picture records a purchase rather than a gift.

The American side of the ledger

The Israeli steps decide how much the children receive. Three American questions follow from that number, and they are cleaner than the Israeli ones.

Form 3520 is triggered by what the children actually receive. A US person who receives more than $100,000 in a year from a foreign estate reports it on Form 3520, Part IV, with a penalty for late filing measured as a percentage of the amount. In the example above, each child receives 1,350,000 shekels, comfortably over the threshold. Had the estate been divided under section 11 with no will, each would receive about 675,000 shekels, which at current rates sits close to the line, and the year of receipt, not the year of death, is what counts. The Form 3520 page covers the mechanics.

The step-up applies to what they inherit, not to what they buy. The children's basis in the half of the apartment they inherit is its fair market value at the father's death under 26 USC 1014, and that applies even though the father was not a US person. If the children then buy Dalia's share, that part has a cost basis equal to what they paid. When the apartment is eventually sold, the American gain is computed in two pieces with two dates, and the Israeli land appreciation tax is computed on a different basis again, as the apartment page explains. Keep the buyout contract; it is the only document that will prove the second basis.

If the father was a US citizen, the estate has its own questions. The family on this page did not have this problem; the father let his green card lapse years ago. Where the parent was a US citizen or domiciliary, the estate may need to file Form 706, and the composition of the gross estate becomes a live question: whether the widow's balancing share is her own property that never entered the estate, as the Supreme Court treated the wife's half in Berger for Israeli estate tax, or a claim against the estate to be deducted, and whether the widow, if not a US citizen, needs a QDOT for anything left to her. The spouse estate-tax page sets out that ground. None of it changes the Israeli division. It changes only what the American return says about it.

What to ask, and who to ask it of

Ask the Israeli lawyer handling the balancing claim:

• When the father and the widow married, where they were domiciled at the time, and whether any property agreement was ever signed and confirmed under section 2, in Israel or abroad.
• For each significant asset, whether it was acquired before or after the marriage, and whether it was received by gift or inheritance and kept separate.
• What the widow accumulated in her own name during the marriage, including pension and provident fund rights, and how that reduces the payment from the estate.
• Whether the widow intends to remain in the apartment, and whether a buyout in either direction is realistic.

Ask the US accountant or tax adviser:

• Whether the amount each child will receive in the year of distribution crosses the Form 3520 threshold, and whether any part of a settlement with the widow could be characterised as a gift by the children.
• How to document the inherited share and any purchased share of the apartment separately for basis purposes.
• If the parent was a US citizen or domiciliary, whether a Form 706 is required and how the balancing payment should be presented on it.

And ask the family, while the parent is alive, one question that costs nothing: is there a property agreement? A second marriage in Israel without one hands half the marital accumulation to the surviving spouse by statute, and a will signed later cannot take it back. A property agreement, confirmed under section 2 at the time of the wedding or afterwards, is the only document that changes step one. Everything on this page is about what happens when that document does not exist.