Quick answer. Constructive service is service by publication under chapter 49, Florida Statutes, used when personal service on a trust party cannot be had. It requires a diligent search, a sworn statement, a notice of action, and publication. It confers only in rem or quasi in rem jurisdiction, not personal jurisdiction, and demands strict statutory compliance.
Key takeaways
- Constructive service is available only when personal service cannot be had.
- It confers only in rem or quasi in rem jurisdiction, not personal jurisdiction.
- Strict compliance with chapter 49 is essential, because failure can render the judgment void or voidable.
When is constructive service available?
Only when personal service cannot be had. Situations include a party whose residence cannot be located or who cannot be identified, a party residing outside Florida, a party whose Florida residence exists but who has been absent more than sixty days, and a party who conceals himself to avoid service. The plaintiff cannot choose publication merely for convenience.
What are the required steps?
Engage a professional to conduct a diligent search and file an affidavit of diligent search. File a sworn statement setting forth the matters chapter 49 requires; for a natural person defendant, see Section 49.041. File a notice of action under Section 49.08 with a return date under Section 49.09, then publish under Section 49.10. If no defenses are filed by the return date, request entry of default.
What jurisdiction does constructive service confer?
Only in rem or quasi in rem jurisdiction. It does not give the court personal jurisdiction over the party. The court may adjudicate the party's interest in the trust property but cannot enter a judgment directly against the party in personam. Strict compliance is crucial, because failure can render the judgment void or voidable.
Frequently asked questions
What is constructive service in a Florida trust case?
Service by publication under chapter 49, used when personal service cannot be had.
Does constructive service give personal jurisdiction?
No. It confers only in rem or quasi in rem jurisdiction.
What is required before constructive service?
A diligent search and an affidavit of diligent search, followed by a sworn statement, notice of action, and publication.
About the author
Attorney Adrian Philip Thomas is a shareholder and founding partner of Adrian Philip Thomas, P.A., a boutique attorney law firm located in Fort Lauderdale, Florida. He has practiced law for the past 30 years, maintaining an office in Fort Lauderdale, Broward County, Florida. Mr. Thomas is "AV" rated by Martindale-Hubbell and has been selected on multiple occasions as one of Florida's Legal Elite by Florida Trend Magazine and selected as a Super Lawyer. Mr. Thomas concentrates his practice in estate and trust litigation, both prosecuting and defending, which includes matters involving estates, trusts, and probate. He represents clients with disputes throughout the State of Florida. Attorney Adrian Philip Thomas has a Master of Laws from the University of Miami, a Juris Doctor from Nova Southeastern University, and a Bachelor of Science from the University of Florida. Attorney Adrian Philip Thomas has lectured at continuing legal education seminars on various probate topics.
This article is general legal information about Florida law, not legal advice, and does not create an attorney-client relationship. Consult a Florida-licensed attorney about your specific situation.
