Proving US Law in an Israeli Court: The Foreign-Law Expert

An American family walks into an Israeli hearing certain the case is simple, because under the law of the father's home state the answer is not in doubt. The Israeli judge is not allowed to agree with them. Not because the judge disagrees on the law, but because, as far as an Israeli court is concerned, American law is not law at all until someone proves it. It is a fact, sitting on the same evidential shelf as a property valuation or a medical report, and a fact has to be established by evidence or it does not exist in the file.

That single principle, foreign law as fact, decides a surprising number of cross-border Israeli cases, and it decides them quietly, often against the party who assumed their home law would speak for itself. This guide explains how a US party proves American law to an Israeli court from abroad, why the failure to do it is so costly, and how the mechanics of the expert opinion actually work. The short version lives in our Q&A on proving US law to an Israeli court; what follows is the fuller treatment.

Foreign Law Is a Fact, Not Law

In some legal systems a judge is expected to know and apply foreign law once it becomes relevant. Israel is not one of them. Israeli courts treat the content of foreign law as a question of fact to be pleaded and proved, which means US law reaches an Israeli file only through evidence, and the standard evidence is a written opinion from a qualified expert in that law.

The Civil Procedure Regulations 5779-2018 govern expert evidence, and a foreign-law opinion is filed under that framework like any other expert report. In practice the expert is a member of the relevant state bar, and the opinion sets out the governing statutes, the leading case law, and how both apply to the specific facts of the case, with the source materials exhibited. It is not enough to assert what the law says. The judge, who cannot read the Florida Statutes or a line of New York surrogate practice, needs the provisions quoted, the authorities attached, and the conclusion applied to this particular family.

The other side is entitled to answer. They can file a competing opinion from their own US expert and cross-examine yours, and Israeli judges genuinely weigh one American opinion against another rather than deferring to whichever was filed first. Where the point is narrow and both sides are represented, the cheaper and faster path is often a joint expert or an agreed statement of the foreign rule, which spares everyone a duel of retained attorneys over a proposition that may not actually be in dispute.

Where This Bites Hardest: Israeli Estates Governed by US Law

The situation that produces this problem most often is inheritance, and the reason is a choice-of-law rule that sends the case abroad while the assets stay in Israel.

Section 137 of the Succession Law 1965 provides that succession follows the law of the deceased's domicile at the time of death. A father who spent his last thirty years in Florida, while holding a Tel Aviv apartment and an Israeli bank account, dies domiciled in Florida, and Florida law governs who inherits, even as to the Israeli assets, subject to one carve-out discussed below. That result is only useful to the heirs who actually bring Florida law into the Israeli record. Leave it unproved and the apartment is distributed as though the father died under Israeli law.

There is a limit worth flagging. Section 138 of the Succession Law 1965 reserves succession to immovable property situated in Israel to Israeli law where the foreign law would otherwise send it elsewhere, so the interaction between the domicile rule and the land rule is itself a question that a good opinion has to address rather than assume. Our Q&A on which law governs a non-resident's Israeli estate sets out the choice-of-law framework the opinion has to be written against, and the domicile question that has to be answered first.

In Practice: Under Section 137 of the Succession Law 1965 the succession follows the law of the deceased's domicile at death, and that foreign law must be proved as a fact by an expert opinion under the Civil Procedure Regulations 5779-2018, filed at the Family Court (Beit Mishpat LeInyanei Mishpacha) that holds the file. A usable opinion from a US attorney, covering intestacy shares, spousal rights and any elective share, typically costs USD 3,000 to USD 8,000 and takes three to six weeks to prepare. The Israeli court fee on a contested estate claim is 2.5% of the value in dispute, with a Magistrates Court floor near NIS 773. Budget the opinion at the start of the case, because a court that has already ruled on the presumption of identity of laws will not usually reopen it.

The Presumption That Fills the Silence

The most dangerous rule in this area is the one that operates when you do nothing.

When foreign law is relevant but nobody proves it, Israeli courts fall back on the presumption of identity of laws (chazakat shivyon hadinim), deciding the case as though the foreign law were identical to Israeli law. It sounds like a neutral default. For an American family it is almost never neutral, because Israeli succession law is markedly more generous to spouses and partners than the intestacy law of a typical US state.

Israeli law gives a surviving spouse a fixed statutory share of the estate and, under Section 55 of the Succession Law 1965, recognises an unmarried cohabiting partner, a reputed spouse, as an heir in defined circumstances. A common-law US state gives neither in the same terms; it may hand the estate to children, or to a spouse in a different proportion, or make no provision for a long-term partner at all. So the family that stays silent about US law does not get a neutral outcome. It gets an Israeli outcome imposed on an American estate, which can mean a spouse inheriting who would not have inherited at home, or a partner taking a share the deceased's home state would never have recognised. The presumption rewards whoever benefits from Israeli law being applied, and punishes whoever needed the foreign rule proved.

Proving It From Abroad: Logistics, Translation and Timing

Distance changes the logistics of proving US law, not the requirement itself.

The expert does not have to fly to Israel. The opinion is filed in English accompanied by a certified Hebrew translation, and getting that translation right matters, because the judge reads the Hebrew. A loose or non-specialist translation of a US statute can distort the very provision the case turns on, which is why the translation should be handled by a certified legal translator familiar with the terminology, not by the expert's office. Our guide on certified translation of legal documents in Israel explains the standard Israeli courts expect. Where the court orders cross-examination of the foreign expert, it can usually be taken by video link with the court's permission, so an attorney in Chicago answers questions in a Tel Aviv hearing without leaving the office.

In Practice: Expert evidence is governed by the Civil Procedure Regulations 5779-2018, and a foreign-law opinion must be attached to the pleading rather than produced later, because Israeli courts are strict about late expert reports. The opinion is filed with a certified Hebrew translation, which a specialist legal translator prepares for roughly NIS 250 for the first 100 words and about NIS 200 per additional 100 words on the notarial-translation scale, delivered within one to two weeks. Cross-examination of the foreign expert, where the Family Court orders it, can be taken by video link with the court's permission, so no US attorney need travel; the hearing itself is commonly listed six to twelve months after the pleadings close.

Two things go wrong from abroad, and both are avoidable. The first is timing. Expert evidence has to be attached to the pleading, not produced later when the argument turns out to matter, and Israeli courts are strict about late expert reports. A US family that files first and thinks about the foreign-law opinion afterward can find the door closed. The second is scope. American lawyers instructed loosely tend to write an essay on the law of the state, learned and thorough and useless, when what the Israeli judge needs is a direct answer to a defined question: who inherits, in what shares, with the statute quoted and applied to these names. The fix is procedural. An Israeli lawyer should draft the precise questions before the US attorney starts writing, so the opinion answers the case rather than describing a jurisdiction.

The same discipline applies in reverse, and it is worth knowing. When an Israeli order or an Israeli-law point has to be proved in a US probate court, it is proved there as a fact too, by a qualified Israeli lawyer's declaration, which is why the two sides of a cross-border estate often each hold an expert on the other's law.

What Often Goes Wrong

Common Mistake: A US family assumes the Israeli judge will apply their home state's intestacy law because it obviously governs, and files the estate claim without a foreign-law opinion attached. Under the presumption of identity of laws, the court then decides the case as though US law matched Israeli law, and Israeli law under Section 55 of the Succession Law 1965 can hand a share to a surviving spouse or reputed spouse that the home state would not recognise. Because expert evidence has to be filed with the pleading and Israeli courts rarely reopen the point, the omission is close to irreversible, and a USD 3,000 to USD 8,000 opinion that was skipped can cost an heir a share of a Tel Aviv apartment.

The other failure is treating the opponent's opinion as harmless. If the other side files a US-law opinion and you file nothing, their version of your home state's law becomes the court's version, unanswered. In a contested estate you cannot afford to let the only evidence of American law be the evidence chosen by the party it favours.

Practical Checklist

• Settle the deceased's domicile first, because Section 137 turns on it and the whole choice of foreign law follows from the answer.
• Have your Israeli lawyer draft the precise questions for the US expert before any opinion is written.
• Instruct a US attorney admitted in the relevant state to prepare the opinion, with statutes and case law exhibited.
• Commission a certified Hebrew translation of the opinion from a specialist legal translator, not the expert's own office.
• File the opinion with the pleading, not later, and budget USD 3,000 to USD 8,000 and three to six weeks for it.
• If your opponent has filed a foreign-law opinion, answer it; an unanswered opinion becomes the court's finding on US law.

Speak With an Israeli Attorney

The moment a case turns on American law, an Israeli court stops looking at the law and starts looking for the evidence of it. A family that understands this files the opinion early and frames it tightly; a family that does not learns about the presumption of identity of laws only after it has decided the case. We frame the questions for your home-country attorney, file the opinion in the correct form and translation, and argue the choice-of-law point before the Israeli court decides your case on the assumption that US law looks like Israeli law.

Contact us for a confidential initial consultation.