Florida is not a community property state.
Florida is, however, a recipient of domestic and foreign migration. Often, those that relocate to Florida come from community property states, or countries with property rights akin to community property states that require due consideration. In addition, even if the married couple that relocates to Florida did not come from a community property jurisdiction, it is possible they may have resided there at one point during the marriage.
When a transplant from a community property jurisdiction dies a resident of Florida, their spouse’s rights in the community property are preserved by the Florida Uniform Disposition of Community Property Rights at Death Act, codified in Fla. Stat. §§ 732.216 – 732.228.
Florida’s Uniform Disposition of Community Property Rights at Death Act (FUDCPRDA or ss. 732.26-732.228) applies to the disposition at death of the following property acquired by a married person:
(1) Personal property, wherever located, which:
(a) Was acquired as, or became and remained, community property under the laws of another jurisdiction;
(b) Was acquired with the rents, issues, or income of, or the proceeds from, or in exchange for, community property; or
(c) Is traceable to that community property.
(2) Real property, except real property held as tenants by the entirety, which is located in this state, and which:
(a) Was acquired with the rents, issues, or income of, the proceeds from, or in exchange for, property acquired as, or which became and remained, community property under the laws of another jurisdiction; or
(b) Is traceable to that community.
Pursuant to Fla. Stat. § 732.219—Disposition upon death:
Upon the death of a married person, one-half of the property to which ss. 732.26-732.228 apply is the property of the surviving spouse and is not subject to testamentary disposition by the decedent or distribution under the laws of succession of this state. One-half of that property is the property of the decedent as is subject to testamentary disposition or distribution under the laws of succession of this state. The decedent’s one-half of that property is not in the elective estate.
Is a claim necessary to perfect the surviving spouse’s one-half interest in community property?
Yes. In Johnson v. Townsend, 259 So. 3d 851 (Fla. 4th DCA 2018), cert denied, 2019 WL 6248012 (Nov. 22, 2019), the appellate court held—among other holdings described below—that a creditor claim was required to confirm and effectuate a surviving spouse’s vested one-half interest in community property.
The case concerned a married couple that relocated to Florida from Texas, a community property state. The first spouse to die was survived by a spouse and children from an earlier marriage. The surviving spouse sought admission of the decedent’s will and was appointed as the personal representative of decedent’s estate. More than two years later, the surviving spouse filed a FUDCPRDA to “confirm and effectuate her vested 50% community property interest in an investment asset acquired and titled in the decedent’s name while the decedent and the wife were domiciled in Texas, a community property state.”
The decedent’s children moved to strike the surviving spouse’s claim as untimely under sections 733.702(1), 733.710(1), and 732.223, Florida Statutes. The surviving spouse responded stating, among other things, that her community property interest is not a claim.
A claim is defined under Fla. Stat. § 731.201(4) as:
A liability of the decedent, whether arising in contract, tort, or otherwise, and funeral expense. The term does not include an expense of administration or estate, inheritance, succession, or other death taxes.
The District Court of Appeal for the Fourth District held that the surviving spouse’s community property interest is a liability of the decedent. Johnson, 259 So. 3d at 857.
It is important to be mindful of this interpretation of Fla. Stat. 732.223—Perfection of title of surviving spouse, which states:
If the title to any property to which ss. 732.26-732.228 apply was held by the decedent a the time of the decedent’s death, title of the surviving spouse may be perfected by an order of the probate court or by execution of an instrument by the personal representative or the beneficiaries of the decedent with the approval of the probate court. The probate court in which the decedent’s estate is being administered has no duty to discover whether property held by the decedent is property to which ss. 732.26-732.228 apply. The personal representative has no duty to discover whether property held by the decedent is property to which ss. 732.26-732.228 apply unless a written demand is made by the surviving spouse or the spouse’s successor in interest within 3 months after service of a copy of the notice of administration on the surviving spouse or the spouse’s successor in interest.
What are the deadlines for filing a community property claim?
In light of the Johnson decision, it appears now that a surviving spouse’s community property claims are subject to Florida’s statutory creditor deadlines.
Thus, a surviving spouse who seeks to effectuate or perfect his or her community property must file a statement of claim in decedent’s estate within three (3) months after the Notice to Creditors is published according to Fla. Stat. § 733.702(1), or within two (2) years after the decedent’s death, accordingly Fla. Stat. § 733.710(1).
UPDATE: Johnson v. Townsend
Surprisingly, November 22, 2019, the Supreme Court denied hearing and review. 2019 WL 6248012 (Nov. 22, 2019).
Please recall that the District Court of Appeal for the Fourth District certified the following question of “great public importance”:
Whether a surviving spouse’s vested community property rights are part of the deceased spouse’s probate estate making them subject to the estate’s claims procedures, or are fully owned by the surviving spouse and therefore not subject to the estate’s claims procedures.
This decision, now with finality, illustrates several pitfalls to be mindful of when a probate estate has community property considerations. It is important to be aware of the rapidly-approaching deadlines for creditor claims. When a surviving spouse is claiming an interest in community property the surviving spouse must file a claim within the statutory time period. No exceptions exist to circumvent the requirement that a claim must be filed.
If you have questions about community property and its potential impact on your estate, please call the probate lawyers at Comiter, Singer, Baseman & Braun, LLP at (561) 626-2101 or toll free (800) 226-1484.