District Courts Uphold Probate Court Dismissals of Untimely Filed Claims.
Creditors of estates typically must file a claim against a probate estate within three months of receiving notice that the decedent had died and a probate estate has been opened. Otherwise, the creditor (or anyone else seeking a claim against an estate) is generally limited to two years following the decedent’s date of death to seek recovery of money from a probate estate. These principals have been codified by the Florida legislature in the Probate Code.
The two leading cases interpreting these sections of the Probate Code are Comerica Bank & Trust, FSB v. SDI Operating Partners, LP, 673 So.2d 163 (Fla.4th DCA 1996), and May v. Illinois Nat. Ins. Co. 771 So.2d 1143 (Fla. 1999). Comerica involved an action arising from alleged environmental pollution of land once owned by the Decedent. The current owner of the polluted land filed an action in a Michigan court against the Decedent more than a year after the decedent’s death (the date of death was June 20, 1992) seeking money damages and other relief. Id. at 164. Later, the landowner assigned to SDI all of its causes of action against the other defendants, including the lawsuit against Decedent. Id.
On September 27, 1994, more than two years after the Decedent’s death, SDI filed a petition to enlarge the time for filing a claim in the Decedent’s probate estate, which the probate court granted over the Personal Representative’s objection that section 733.710 of the Florida Probate Code unavoidably barred the claim as untimely.
The Personal Representative appealed the probate court ruling to the Fourth District Court of Appeal. The Fourth District first reflected on the shifting meanings of the term “limitations” in light of the United States Supreme Court’s opinion in Tulsa Professional Collection Services Inc v. Pope, 485 S.Ct. 1340 (1988). The Pope court drew a distinction for due process purposes between statutes of limitations that are “self-executing,” like statutes of repose which are effective by their very terms; and statutes of limitations where “private parties make use of state procedures with the overt, significant assistance of state officials.” Pope, 108 S.Ct. at 1345. The self-executing statutes do not implicate any due process problem, but those that involve significant state participation in their assertion and vindication implicate the protections of the due process clause. Pope, 108 S.Ct. at 1346. The Fourth District then looked to section 733.710 and found that it was a statute of repose, not merely a statute of limitation, and could not be extended for any reason beyond the absolute deadline of two years:
“Knowing the effect of the Pope decision, it seems inescapable that the legislative intent for section 733.701 was to create a self-executing period of repose-without significant action by the state itself, it must be noted-for all claims after the lapse of the 2-year period. In its own terms, it takes precedence over all other provisions in the probate code. At the same time, the text is formulated to extinguish any liability that the estate, the beneficiaries, or the PR might have had for any claim or cause of action against the decedent. Hence, rather than merely fixing a period of time in which to file claims, as section 733.702 does, in reality, it creates immunity from liability arising from the lapse of the period stated.”
The Fourth District then read 733.710 together with the statute of limitations contained in 733.702 and merged the two into a statute of repose:
“Clearly, section 733.710 creates a self-executing, absolute immunity to claims filed for the first time, as here, more than 2 years after the death of the person whose estate is undergoing probate. It does not depend on the PR timely objecting to a late claim, and the claimant cannot avoid it by showing, as he could for the nonclaim period under section 733.702, fraud or estoppel or insufficiency of notice. The absence of a provision authorizing enlargements of the repose period, together with the provision in section 733.702(5) negating any use of the enlargement provision to extend the repose period, make it clear to us that the lapse of the 2-year period erects an absolute jurisdictional bar to late-filed claims that the probate judge lacks the power to ignore. It obviously represents a decision by the legislature that 2 years from the date of death is the outside time limit to which a decedent’s estate in Florida should be exposed by claims on the decedent’s assets.”
The Florida Supreme Court accepted the rationale of Comerica in May v. Illinois Nat.Ins.Co., 771 So.2d 1143 (Fla. 2000) and held that Fla.Stat. §733.710 is a jurisdictional statute of nonclaim that is not subject to waiver or extension in the probate proceedings. Thus, section 733.710, by its own terms, takes precedence over all other provisions in the probate code. Therefore, after the Florida Supreme Court’s holding in May, one would assume that there is no longer any question about whether a claim can be filed more than two years after the death of a decedent.
However, my practice and others have witnessed new theories asserted by tardy claimants who seek money from an estate. One of these new theories was examined recently by the Florida 1st District when a claimant asserted that their claim was timely filed when measured from the date of publication of a second notice to creditors of the estate. In Mack v. Mack, –So.3d–, 2009 WL 4912602, 34 Fla.L.Weekly D2619a (Fla.1st DCA, December 22, 2009) the first notice to creditors was published on May 14 and the claim against the estate on October 15, 2009. Although the claimants acknowledged that their claim was filed beyond the three months, they asked to court to allow their case to proceed against the estate because it was filed within three months from a second notice to creditors that was issued by the estate. The 1st District, applying the rationale of May v. Illinois National held that the second notice was “unnecessary surplusage” which has no effect on the validity or effectiveness of the first notice published.