The President of Israel lays a wreath for fallen IDF soldiers. Remembrance and heritage are public knowledge, but who inherits the fallen?/Government Press Office, Haim Tzach
We live in a country plagued by wars and terror attacks, but even those who have endured most of Israel's wars here will surely agree that "Iron Swords" is particularly harsh and cruel, perhaps because most of its casualties were injured inside their homes.
The struggles faced by many families of murdered civilians, fallen IDF soldiers and missing persons were numerous and complex even before they encountered the intricacies of bureaucracy and the law, and on this issue deserves a good word for the Knesset, which succeeded at uncharacteristic speed in passing a number of amendments to family law that will make it even slightly easier for those who have lost what is dearest to them.
The young age of many fallen and missing persons raised difficult issues regarding the status of the spouse's rights in a case where there is still no legal marriage. Attorney Dalit Yaniv Messer explains that these days in particular, the importance of common-law status in Israel is rising. "Every day, unfortunately, we bring the best of our sons and daughters to be buried. Some were married and left widows and children, some planned a wedding and never attended, some were in a long and committed relationship that had not yet matured and essentially left a spouse behind."
Yaniv Messer explains that the spouse, for that matter, who did not get married and has not yet had time to receive a marriage proposal, is actually a widow without a ring. "The relationship in such a case, even though there is no formal engagement, or marriage is a common-law relationship. And why is it so important now to set this status legally? Because only first-degree family members can get any information about their loved ones.
"In this war, for that matter, information that pertains to questions such as: whether the spouse was harmed, kidnapped or murdered, God forbid. Anyone who is not or is not defined as a common-law spouse will not receive a shred of information about their spouse."
In the past, there was talk of legal status of common-law couples that is limited in time, I understand that when it comes to the current status, there is no minimum time?
"There is no minimum period of time, but it is not enough to say or declare 'we are common-law couples.' Of course, as in any bureaucratic procedure, here too and if disaster happens, you have to contact the National Insurance Institute and fill out a special very detailed form, where all the questions about the couple's life together are asked.
Did they live together? Was there a joint bank account? Were there any plans to live together? Is there a special marital ceremony, even if there was no wedding as a matter of religion? Is there a marriage proposal or ring accepted? Assuming that some of these assumptions are met, the National Insurance Institute recognizes the spouse as a common-law spouse, and to them all the laws of a married couple apply, in the event of death, God forbid."
It can be assumed that in an age when social networks occupy a large volume in our lives, it will be easier to prove status, especially when it comes to young people who are not in a hurry to make decisions.
"Of course it does. There are pictures, there are proofs. It is enough to have a rental contract or all sorts of things that are special to a couple who are in a certain relationship. Of course, I'm not talking about a couple who have been dating for three months and still don't know who's against whom.
"So who are common-law couples? Spouses who lived together, lived a family life and lived under the same roof, "although there are certain cases in which you do not have to live together seven days a week in the same house in order to be recognized as common-law couples. Usually such couples already feel 'married' for all intents and purposes."
Is there a difference between just a "regular" girlfriend and someone who was (or will be) to receive a marriage proposal?
"Yes. Because only as an official common-law spouse – the same company for that matter – can receive information or a monthly allowance from the National Insurance Institute, or if it is a soldier – receive the same compensation from the Ministry of Defense.
"Only this status, alongside marriage of course, anchors the issue in law. Of course, once someone, for example, is a common-law spouse of a soldier or civilian who was murdered or kidnapped, she is also defined within the status of 'victims of hostilities and their families,' it is a rubric of a victim of hostilities who is entitled or entitled to certain benefits that help and support them."
Adv. Dalit Yaniv Messer/Sam Itzchakov
Captain (res.) Sagi Golan was killed in battle in Beeri, and his fiancé, Omer Ohana, who was supposed to marry him a few weeks after the tragedy, did not receive recognition from the IDF as the spouse of a fallen soldier. The great cry that rightly arose after the story of the late Golan and Ohana was published, succeeded in bringing with it good news in the form of an amendment to the Compensation Law for family members of missing persons or abductees from first relatives, as well as for the families of soldiers who perished.
"The amendment to the law actually talks about equal rights for LGBT people in these matters," explains attorney Yaniv Messer, "LGBT spouses are recognized as common-law spouses who enter under the umbrella of a first-degree family. The amended law, which passed its first reading in the Knesset at the beginning of the month, basically says that someone who was married to the victim on the day of his death is recognized, and as a rule the one who lived with the victim and was known as his spouse.
"The significance is enormous, and the title gives the LGBT spouse the ability to receive information, an allowance, to inherit the spouses, and assuming that the law also passes its second and third readings, the LGBT spouses will be recognized as a widower or widow of the IDF for that matter. This amendment, as stated, is very important to members of the community, who until now on these issues, as in other issues, have been defined as coupons."
Another issue that is not new and has made headlines in recent years in the context of fallen IDF soldiers is the issue of sperm retrieval of a deceased person. The story of Yahav Weiner and Shai Li Atari from Kfar Aza broke everyone's hearts, in this case it was a married couple when Atari petitioned in order to have enough sperm to give another brother or sister to their baby daughter after her husband's murder.
"This war has resurfaced awareness of the issue of sperm extraction from a deceased loved one. And according to data from the Ministry of Health, since the beginning of the war, about 42 requests for sperm extraction after death have been submitted by family members, and that's a lot."
How is it that in a country like ours there is still no organized legislation on the subject?
"A law that regulates this issue does not exist. By the way, it does not exist anywhere else in the world. But there are guidelines published in 2003 by the Attorney General that say that a deceased's sperm can be used, if he expressly consents to it or if his spouse requests it."
His parents, who recall past cases of parents of fighters, can't actually ask for such a thing.
"According to the Attorney General's instructions, the parents of the deceased did not have the right to pump sperm until now, and in order for them to do so in exceptional cases, they had to turn to a court that in most cases the legal process allowed them to pump the sperm, but not always use it later - because of the issue of the will of the deceased, and here we enter another issue that is no less complex and painful.
"Even in the case of sperm extraction from a deceased person, a quick correction was created, beginning with a temporary directive given to the hospitals, which allows them to perform a procedure of taking sperm from a deceased person even if his parents demand it and not the spouse. This is without the need to go to court, as was customary until now, due to the large number of deaths and requests for it. It is important to note that sperm retrieval can be performed within a very limited window of 72 hours from the date of death, and there is no possibility of delaying the decision."
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Capt. Sagi Golan z"l. His story and that of his partner, Omer Ohana, led to the amendment of the law/courtesy of the family
Living from the dead
In May 2023, the Knesset approved in a preliminary reading the bill to use the sperm of a deceased person for procreation, a bill submitted by MK Kati Shitrit and MK Merav Ben Ari. This week, the same proposal is scheduled to be debated in the plenum, ahead of a vote on the first reading.
"The same bill actually expands the guidelines that were passed and claims that sperm extraction from a deceased person after his death will be possible at the request of the spouse or parents under certain conditions. The bill basically wants to allow the spouse of the deceased who did not bring explicit objection to use his sperm, even if he did not leave explicit instructions or did not expressly express disagreement."
Does an unmarried spouse have status on this issue?
"If she's a common-law partner, she has. This is why the definition of common-law marriage has so many implications at the moment of truth. Once she is recognized as a common-law partner, she falls into the definition of his partner. People who were planning to get married would probably want to expand their family and have children."
What about inheritance law, as far as young people are concerned, who I assume don't have much property or estate? Or the complicated issue of heirs?
"In a will, we basically order how we want our property to be divided, if a person did not leave a detailed will, his estate, which is the property, is divided according to the law of inheritance. And the dry law says that the estate passes to the heirs. But again, on October <>th, we woke up to a new, chilling and complex reality in which entire families or parts of them were murdered together simultaneously. In order to make it easier for the heirs, the Minister of Justice accepted the proposed amendment to the Inheritance Law regarding the division of an estate."
For those who are not knowledgeable, there is a cumbersome mechanism for distributing an estate in the event that several family members pass away together, and the need to "prove" who died first. Attorney Yaniv Messer explains that there is significance to the order of death in determining the heirs. "But of course, in the present case, without going into descriptions, it is impossible to determine such a thing. And the amendment to the law is certainly intended to ease and correct the cumbersome mechanism, and allows family members to spare themselves the deepening of an even more difficult event."
Could it be that the family has a conflict of interest? Is this also something that happens?
"Certainly yes, unfortunately, it happens, but the family's conflict of interest is less relevant here because there may be extraneous considerations that come into play. Because of the entitlement to receive both allowances and inheritance, sometimes less pleasant and less pleasant considerations enter into this thing.
"The person who actually gives the sanction to this status of eligibility is the National Insurance Institute and sometimes also a family court that has to prove to it that there really existed a relationship with which the rights and entitlements as written in the law are also entitled."
- More on the subject:
- IDF fallen soldiers
- Victims of hostilities