Probate LawIn 2018, Florida once again retained the title as the state with the highest number of incoming state-to-state migrants, as well as the largest recipient of retirees. A significant portion of those relocating individuals will be married couples who are coming to Florida en route from a community property state or may have resided in a community property state at some point while they were married. Exactly how many does this scenario apply to? Probably more than you would expect.

As a reminder, community property is a marital property regime under which the majority of property acquired by a spouse over the course of a marriage (excluding gifts and inheritances) is jointly owned by both spouses until it is appropriated due to divorce, annulment, or one of the spouses passes away. There are currently nine community property state jurisdictions. This includes the top two states in terms of sheer population: California and Texas. Additionally, Alaska follows an elective community property regime. And out of the five inhabited U.S. territories, both Puerto Rico and Guam are community property jurisdictions. On top of that, married couples coming to Florida from foreign countries with civil law systems (which includes all of Latin America) typically carry with them some form of community property rights.

Florida Uniform Disposition of Community Property Rights at Death Act (FUDCPRDA)

You might be wondering why any of this is applicable to Florida probate law issues. The answer is that, when a Florida transplant who relocated from a community property jurisdiction passes away in Florida, their surviving spouse’s testamentary community property rights are not extinguished. Instead, they are protected under the Florida Uniform Disposition of Community Property Rights at Death Act (FUDCPRDA), which is Florida’s iteration of the Uniform Disposition of Community Property Rights at Death Act that has been implemented in 17 states (see F.S. § 732.216-.228).

But here’s the issue: due to the fact that Florida is not a community property state, community property creates a problem for the majority of Florida probate lawyers because they seldom handle such matters. This subsequently often leads to significant delays in their determining if a surviving spouse is eligible to file a FUDCPRDA claim in order to preserve their community property rights. Why does this matter? Because in Florida probate litigation, community property claims are considered waived if they are not filed prior to the statutorily mandated deadline. Just how short is that filing deadline? According to a recent case decided by the 4th District Court of Appeals (DCA), it may be shorter than you may think.

Johnson v. Townsend, So.3d, 2018 WL 5291297 (Fla. 4th DCA, Oct. 24, 2018)

This case involved a married couple that relocated to Florida from Texas – which, as mentioned above, is a community property jurisdiction. When the husband passed away in January 2015, he was survived by his spouse and children from a previous marriage. In March 2015, the deceased husband’s will entered into probate and his wife was designated as the personal representative. In September 2017 (over two years and eight months following the husband’s passing), the wife filed a FUDCPRDA claim seeking to claim her vested 50% community property interest in an investment made and titled in the husband’s name while the couple were residing in Texas.

The husband’s children objected, arguing that the FUDCPRDA claim had been submitted well past the mandatory filing deadline. The issue the court had to resolve was the fact that the FUDCPRDA does not provide a specific time frame in which a community property claim must be filed. The wife asserted that there are no deadlines when it comes to merely perfecting an existing property rights claim to non-estate assets she already owned. In response, the children argued that the wife’s community property claim is a type of creditor claim; so the claim had to comply with applicable probate creditor claim filing deadlines. In other words, the children were essentially arguing that a FUDCPRDA claim creates new property rights to estate assets that were owned by the deceased party.

The court sided with the children with regards to their finding that a surviving spouse’s community property claim must comply with the applicable filing deadlines for probate creditor claims, explaining their reasoning as follows:

“The wife’s community property interest is a ‘liability of the decedent’… upon the decedent’s death; his estate became liable to the wife for her community property interest. Thus, upon the decedent’s death, the wife’s community property interest was a claim, which the wife had to pursue…the wife had three months after the time she published the notice to creditors to file her claim according to §733.702(1) and in any event had two years after the decedent’s death to file her claim according to § 733.710(1). The wife did neither.”

Takeaways from the 4th DCA Ruling in Johnson

The only way in which to interpret the DCA ruling in this case is to visualize a FUDCPRDA claim as a type of testamentary marital right that’s waived if not timely filed – similar to an elective share claim – and one that is not treated as existing property rights to non-estate assets the surviving party already enjoys ownership of. The considerably short filing deadlines for creditor claims were designed with the intent of cutting off potential claimants at the earliest point in litigation as possible. This means that if you are a surviving spouse that relocated to Florida from a community property state, you have to take action as soon as possible to file your FUDCPRDA claim. If you are presently navigating the stressful and time-consuming process of probate, one of the last things on your mind is filing complex and time-consuming paperwork in the immediate aftermath of the death of a loved one. While this oversight is understandable, the nuanced statutory framework outlined above can have a significant and costly impact for you, your family, and intended beneficiaries if you fail to take timely action now. That is why it is essential to retain the services of an experienced and knowledgeable probate attorney who can assist you in ensuring that all the claims you are eligible for are timely and properly filed so you get the benefits you deserve.

Contact Beller & Bustamante, P.L., Today – Probate Attorneys with a Proven Track Record

As many people who have lost a loved one have discovered, handling the affairs of someone’s estate is not always a smooth and easy process. The probate and estate litigation attorneys at the Jacksonville office of Beller and Bustamante have a combined 30+ years of legal experience providing exemplary counsel to local clients in all types of estate disputes. Schedule your consultation with a skilled Florida estate and probate litigation attorney immediately. Contact the law office of Beller and Bustamante in their Jacksonville office at (904) 288-4414, today.