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Under Florida probate law, is there a statute of limitations for a claim against the decedent or the decedent’s estate?

| Jun 2, 2014 | Probate |

In addition to the time frame set forth in Florida’s non-claim statute (contained in Section 733.702 of Florida Statutes), the Florida Probate Code establishes a two-year statute of limitations for asserting claims against the decedent and the decedent’s probate estate.

Section 733.710 sets forth this limitation period by providing that neither the decedent’s estate, the personal representative, nor the beneficiaries shall be liable for any claim or cause of action against the decedent if not brought within two years of the decedent’s death. This limitation period applies regardless of whether letters of administration have been issued and regardless of whether a probate has been opened.

Being aware of this two-year period is important because its consequences can be different than an applicable statute of limitation if the person had not died. For example, consider a situation where Party A and Party B enter into a written contract, after which time Party A breaches the contract. If Party A then dies, Party B must assert his claim for breach of contract within the earlier of two years from Party A’s death or four years from the date of breach (the limitation period for breach of a written contract is four years in Florida).

One exception to this two-year limitation period applies a creditor who has filed a claim within two years after the person’s death, and whose claim has not been paid or otherwise disposed. For this reason, when a creditor has a claim against a deceased person, the creditor would be well-served to consult a lawyer and to file a claim even if no probate is pending. This can be done under applicable Florida law, even if there is no probate filed, by filing the creditor’s claim with the Clerk of the Circuit Court in the county where the decedent resided at the time of death.

As with the non-claim statutes, another exception to the two-year limitation period applies where there is a duly recorded mortgage or security interest or the lien of any person in possession of personal property or the right to foreclose and enforce the mortgage or lien.

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