Dutch Inheritance Law and Florida Comity: Resolving Cross-Border Estate Asset Disputes
In Nahar v. Nahar, a Florida appellate court held that comity should be granted to a Dutch court’s determination that a decedent was domiciled in Aruba and that his estate was governed by Dutch law, but reversed in part regarding Florida real estate and a Totten trust account not subject to the foreign proceedings.
Apostille-certified Dutch to English legal translation services, services of English-Dutch deposition interpreters and Dutch and Dutch Caribbean records research services are frequently required in international probate and inheritance cases involving individuals who lived in the Netherlands or the Dutch Caribbean. These cross-border estate matters often require certified translations of wills, probate court records, civil registry documents, inheritance records, notarial acts, and other legal documents for use in U.S. and foreign legal proceedings. The Dutch Caribbean—comprising Aruba, Curaçao, Sint Maarten, Bonaire, Sint Eustatius, and Saba—maintains legal and civil records that may be critical in establishing heirship, ownership of estate assets, family relationships, and inheritance rights. Experienced Dutch legal translators, deposition interpreters, and records researchers can help attorneys prepare the evidence needed to resolve complex international probate disputes and cross-border estate asset claims. The case of Glenda Nahar v. Ornall Mildred Jap-A-Joe Nahar addresses several important issues in Florida jurisprudence concerning the intersection of international comity, conflict of laws, and the administration of cross-border estates. Decided by Florida’s Third District Court of Appeal in 1995, this case pitted a decedent’s widow and minor children against his adult children from a former marriage in a dispute over Florida bank accounts and real estate. The central question – whether Florida or Dutch law should govern the disposition of assets physically located in Florida – continues to influence how courts handle competing claims between domestic beneficiaries and foreign forced-heirship regimes. The decision is particularly significant because it produced no single majority rationale; instead, the en banc court generated multiple opinions that collectively illuminate the tensions between respecting foreign judicial proceedings and protecting Florida’s strong public policy interests in the ownership and transfer of local financial accounts.
The Suriname-Born Decedent and His Family
Roebi Nahar, a Suriname national, died intestate in Miami, Florida, on May 15, 1984. He was survived by his widow, Glenda Nahar, their three minor children, and six adult children from a prior marriage who resided in Aruba and other Dutch territories. Prior to their marriage in March 1977, Roebi and Glenda had executed an antenuptial agreement before a Civil Law Notary in Aruba, providing that no community property would exist between them and that each party would retain whatever they contributed to or acquired during the marriage—a provision that would later become relevant to the conflict-of-laws analysis.
At the time of his death, Roebi held six bank accounts in Miami totaling $657,761.28. These accounts fell into three categories: (1) three Coconut Grove Bank accounts originally established by Roebi individually and which were later converted to the joint ownership of Roebi and Glenda with joint right of survivorship; (2) two Peninsula Federal Savings and Loan accounts which were established in the name of Roebi or Glenda in trust for their three minor children; and (3) one AmeriFirst Federal Savings and Loan account which was established as a “Totten Trust” in trust for Glenda and the couple’s three minor children with Roebi as trustee. Nine days after Roebi’s death, Glenda withdrew the balances from five of the six accounts, which totaled $514,345.50. This action would immediately trigger litigation.
The Dutch Proceedings
Roebi’s adult children petitioned the Aruban Court of the First Instance to have Roebi’s Aruban properties and the Florida bank accounts administered under Netherlands Antilles law. Notably, the petition did not seek to include the Miami real estate. The adult children alleged that Roebi and his family had resided in Miami only temporarily, maintaining Aruba as their permanent domicile. Glenda appeared and contested jurisdiction, arguing that Roebi was not an Aruban domiciliary and that Dutch law did not apply.
The Aruban court ordered Glenda to deposit the Florida account funds with a notary pending estate settlement. When Glenda failed to comply, the adult children sought ancillary administration in Florida. The Florida court stayed its proceedings pending the Aruban court’s final determination. The matter ultimately reached the Court of Cassation of the Netherlands (The Hague), the highest court for the Netherlands and its possessions. The Hague ruled that Dutch law controlled Roebi’s estate and that the Florida account funds were presumptively assets of the estate, subject to distribution under Dutch forced-heirship rules.
The Florida Trial Court Decision
Following The Hague’s ruling, the Florida trial court granted comity to the Dutch court’s order, found it to be res judicata, and entered final summary judgment in favor of the adult children. The court ordered the transfer of the six Florida bank accounts to Aruba for disposition under Dutch forced-heirship law—a regime under which Glenda and all nine children would each receive a one-tenth share of the estate, dramatically altering the distribution from what would have occurred under Florida law. The trial court did not expressly address the Miami real estate in its order, an omission that would become a key issue on appeal. Glenda timely appealed.
The Appellate Court’s Holdings
The Third District Court of Appeal, sitting en banc, issued a fractured decision with multiple opinions. The majority opinion, authored by Judge Barkdull, addressed several key issues, affirming in part and reversing in part.
Comity and Foreign Judgments
The court first clarified the standard for granting comity to foreign court orders. While acknowledging that final judgments of foreign nations are traditionally entitled to comity, the court adopted the Restatement (Second) of Conflict of Laws approach, holding that “any foreign decree should be recognized as a valid judgment, and thus be entitled to comity, where the parties have been given notice and the opportunity to be heard, where the foreign court had original jurisdiction and where the foreign decree does not offend the public policy of the State of Florida.”
Crucially, the court expressly receded from its prior decision in Cardenas v. Solis, 570 So.2d 996 (Fla. 3d DCA 1990), to the extent that Cardenas had limited comity to final judgments with only narrow exceptions. Instead, the majority embraced a broader standard under which even interlocutory foreign orders could be recognized provided the foundational requirements of notice, jurisdiction, and public policy were satisfied. Applying this standard, the court found that the Dutch court had proper jurisdiction, that Glenda had received adequate notice and a full opportunity to be heard (having contested the issue to the highest court of the Netherlands), and that the Dutch decree did not offend Florida public policy. Therefore, comity was properly granted to the Dutch determination that Roebi was domiciled in Aruba and that Dutch law governed his estate.
Florida Statute § 655.55
The court next addressed Florida Statute § 655.55 (1988), which provides that Florida law governs deposit accounts located in Florida regardless of the parties’ citizenship, residence, or domicile. The majority held that this statute did not apply because the accounts had been established and closed before the statute’s effective date of July 1, 1988, and Roebi had died in 1984. In a footnote, the court further suggested that even if the statute were applicable, the ongoing litigation between the parties on the effective date might constitute “written evidence of rejection” of the statute’s application under subsection (6). This alternative holding would later draw sharp criticism from the dissent.
Miami Real Estate
The court reversed the trial court’s failure to specifically address the Miami real estate. Noting that while personal and intangible property might be governed by Dutch law under the comity analysis, real property “may be subject to a different result” under traditional choice-of-law principles. The case was remanded for further proceedings regarding the disposition of the real estate, recognizing that Florida has a strong interest in regulating title to land within its borders.
The AmeriFirst Totten Trust
Significantly, the court reversed the trial court’s finding that the AmeriFirst Totten trust was subject to Dutch jurisdiction. This account was not the subject of dispute in the Dutch action, Glenda had no notice that the adult children claimed it, and no Dutch court order addressed it. The majority declined to extend comity to mere dicta from the Dutch opinions that had mentioned this account in passing. Under Florida law, as established in Seymour v. Seymour, 85 So.2d 726 (Fla. 1956), this was a true Totten trust account, also known as Payable-on-Death (POD) account or tentative trust, that vested upon Roebi’s death, with proceeds passing directly to the named beneficiaries (Glenda and the minor children) outside the probate estate.
Marshalling Costs
The court affirmed the trial court’s order charging the marshalled assets with the costs incurred in marshalling them, finding no error in requiring the estate to bear the expenses of gathering and preserving the disputed funds.
The Concurring and Dissenting Opinions
Judge Hubbart filed a detailed opinion concurring in part and dissenting in part. He agreed with the majority regarding the AmeriFirst Totten trust and the Florida real estate but strongly disagreed with applying Dutch law to the Peninsula Totten trusts and Coconut Grove joint accounts.
Judge Hubbart argued that Florida’s conflict-of-laws rule—codified in § 655.55 and established in Seng v. Corns, 58 So.2d 686 (Fla. 1952), Lieberman v. Silverstein, 393 So.2d 565 (Fla. 3d DCA 1981), and Sanchez v. Sanchez De Davila, 547 So.2d 943 (Fla. 3d DCA 1989)—requires that the disposition of joint bank accounts and Totten trusts be governed by the law of the account’s situs (Florida), regardless of any party’s domicile or where the estate is being probated. He contended that comity principles are “totally inapplicable” in determining the applicable conflict-of-laws rule, and that § 655.55 expressly excludes comity from consideration. He further argued that the majority’s interpretation of the statute’s effective date was erroneous, as the plain language applies to accounts “entered into before, on, or after July 1, 1988.”
Under Florida substantive law, Judge Hubbart reasoned that: (1) the AmeriFirst Totten trust proceeds passed to the named beneficiaries; (2) as sole surviving trustee of the Peninsula accounts, Glenda had the power to revoke and close them; and (3) under § 658.56, Florida Statutes (1983), the joint accounts with survivorship vested in Glenda absent proof of fraud or contrary intent. He concluded that comity should not override Florida’s legislative and judicial public policy regarding survivorship rights.
Judge Jorgenson filed a separate dissent agreeing with Judge Hubbart that Florida law should control, emphasizing that Florida’s public policy regarding survivorship rights in joint accounts should override any judicial discretion to grant comity. She noted that individuals who open joint accounts or Totten trusts in Florida should enjoy the certainty that their funds will be governed by Florida law, “not by the vagaries of a distant tribunal.”
Significance and Implications
The Nahar decision carries enduring significance for several reasons. First, it represents a thoughtful—if contested—application of comity principles in the context of international estate administration. The court declined to adopt an overly rigid rule that only final judgments are entitled to comity, instead following the Restatement’s flexible approach focusing on notice, jurisdiction, and public policy. However, the strong dissents highlight the enduring tension between respecting foreign proceedings and protecting Florida’s strong public policy interests regarding survivorship rights in bank accounts.
Second, the case illustrates the practical challenges posed by forced-heirship jurisdictions. Civil law countries such as the Netherlands (and its territories) typically protect a decedent’s descendants through forced-heirship rules that cannot be disinherited entirely, whereas Florida (like most U.S. states) permits relatively broad testamentary freedom. When a decedent with connections to both systems owns assets in Florida, courts must determine which legal regime governs—a determination with substantial financial consequences for surviving spouses and children.
Third, the court’s distinction between types of accounts and property was particularly nuanced. The majority treated the AmeriFirst Totten trust differently because it was never subject to the Dutch proceedings and suggesting that the scope of foreign proceedings matters significantly. Similarly, the court recognized that real property might be subject to different choice-of-law analysis than personal property, though it declined to resolve that issue definitively.
Fourth, the court’s interpretation of § 655.55 as inapplicable to accounts closed before the statute’s effective date—and the alternative holding that litigation itself might constitute written evidence of rejection—has been called into doubt. As Judge Hubbart noted in dissent, the statute expressly applies to accounts “entered into before, on, or after July 1, 1988,” and the written objection provision applies only to accounts existing on that date. The majority’s reasoning on this point remains vulnerable to criticism.
Practical Lessons
For practitioners advising multinational families, Nahar offers several practical lessons. First, careful estate planning should address potential conflicts between U.S. and foreign law, particularly where forced-heirship jurisdictions are involved. Second, the location and titling of assets matters enormously—bank accounts held jointly with survivorship or in Totten trusts may receive different treatment than other assets. Third, parties should be aware that foreign proceedings regarding domicile and applicable law may have preclusive effect in Florida courts under comity principles, even if those proceedings are not yet final. Fourth, the scope of foreign proceedings should be monitored carefully, as assets not subject to those proceedings may remain governed by Florida law. Finally, the case demonstrates the importance of prompt and thorough objection to the application of foreign law where domestic statutory protections are available.
Lasting Impact of Nahar
More than three decades after its issuance, Nahar v. Nahar remains a significant precedent in Florida’s conflict-of-laws and comity jurisprudence. Although the case produced no single majority rationale, it establishes that Florida courts will grant comity to foreign determinations of domicile and governing law when the requirements of notice, jurisdiction, and public policy are satisfied. At the same time, the case confirms important limits on comity, particularly where Florida real estate is involved, where specific accounts were never subject to foreign proceedings, and where Florida’s strong public policy regarding survivorship rights in bank accounts may be implicated. The dissenting opinions in Nahar continue to hold relevance, reminding courts that comity must be balanced against Florida’s legitimate interests in regulating financial accounts located within its borders. As international mobility increases and families maintain increasingly complex cross-border connections, the principles articulated and contested in Nahar are likely to grow in importance.
Case Discussed:
Nahar v. Nahar, 656 So. 2d 225 (Fla. 3d Dist. Ct. App. 1995).
Up Next: Arkansas Situs Rules Trump Canadian Will Intent in Pretermitted Heir Dispute