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Civil litigators may think that the Florida Probate Code has nothing to do with their civil lawsuits, but when a party dies during the litigation, the probate statutes can greatly impact a civil case.  Picture this: the lawsuit has been filed and served. The defendant has answered. The parties are aggressively litigating their case, taking depositions, filing motions, etc., when all of a sudden the defendant dies. Although the defendant is dead, as long as the plaintiff’s lawyer follows the proper procedures, the case can survive. The plaintiff’s lawyer must file a statement of claim in the defendant’s probate proceeding in order to maintain the cause of action. Florida Statute  Section 733.702(2) states that “no cause of action, including, but not limited to, an action founded upon fraud or other wrongful act or omission, shall survive the death of the person against whom the claim may be made, whether or not an action is pending at the death of the person, unless a claim is filed within the time periods set forth in this part.” (emphasis added) Therefore, it does not matter that the lawsuit was already pending. If the plaintiff does not file a claim within the appropriate time period, then the cause of action does not survive the defendant’s death.

The time periods in which to file a claim can be a little tricky, but basically the claim must be filed on or before the later of three months after the time of the first publication of the notice to creditors, or 30 days from the date of service on the creditor as to any “reasonably ascertainable creditor.” The plaintiff in a pending action is entitled to be served with a copy of the notice to creditors if the personal representative of the defendant’s estate knew of the pending litigation against the decedent. See In re Estate of Ortolano, 766 So. 2d 330 (Fla. 4th DCA). It is important to note that service of the notice to creditors may be made directly on the plaintiff in the pending litigation and does not have to be made on the plaintiff’s attorney in the pending litigation. American & Foreign Ins. Co. v. Dimson, 645 So. 2d 45 (Fla. 4th DCA 1994). However, service on one of the defendant’s attorneys will bind the creditor, whether it is the “probate” attorney or the “personal injury” attorney. See Grainger v. Wald, 29 So. 3d 1155 (Fla. 1st DCA 2010). An extension of the time period to file a claim may only be granted upon grounds of fraud, estoppel, or insufficient notice of the claims period. Fla. Stat. § 733.702(3). But if the defendant’s personal representative knows about the pending lawsuit and does not serve the plaintiff with the notice to creditors then that defendant’s claim is not barred until the expiration of the two year non-claim period in Florida Statute Section 733.710. Jones v. Golden, 176 So. 3d 242 (Fla. 2015). There is no extension allowed for this two-year time period. It is very important to know these deadlines.

Filing a timely claim in the defendant’s estate gets the plaintiff over one probate procedure hurdle, but there are more. The personal representative of the defendant’s estate is likely to file an objection to the plaintiff’s timely claim. An objection must be filed on or before the expiration of four months from the first publication of notice to creditors or within 30 days from the timely filing or amendment of a claim, whichever occurs later. Fla. Stat. §733.705(2). The plaintiff will then be “limited to a period of 30 days from the date of service of an objection within which to bring an independent action upon the claim, or a declaratory action to establish the validity…” Fla. Stat. §733.705(5).  When there was an action pending against the defendant at the time of the defendant’s death, the plaintiff does not need to file a new “independent action” to enforce the claim, but the defendant does need to do something to satisfy the requirement of an independent action upon the claim. The plaintiff’s pending action can satisfy the independent action requirement if there has been a substitution of the personal representative of the decedent’s estate under Florida Rule of Civil Procedure 1.260 or by the personal representative’s voluntary substitution. See Lewsadder v. Lewsadder, 757 So. 2d 1221 (Fla. 4th DCA 2000). That may sounds simple, but nothing is ever simple. Under Rule 1.260, the motion for substitution must be made “within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion.” The actual substitution is not required to occur within the 90 day time period.  Very important: the 90 day time period under Rule 1.260 has nothing to do with the 30 day deadline in the Probate Code. It is unclear whether only the motion for substitution must be filed or whether the actual substitution must occur within the 30 day time period. A conscientious attorney, at a minimum, should file the motion for substitution under Rule 1.260 in the pending civil action and file a motion for extension of time to substitute the personal representative in the probate proceeding, all within the 30 day time period. This will prevent a later argument over compliance with the 30 day deadline.

The plaintiff in a pending civil action, where the defendant has died, must substitute the defendant’s personal representative for the defendant and must file a claim in the defendant’s estate proceeding in order to ensure the cause of action survives.


Brandon D. Bellew is a partner in the Firm’s Clearwater office and focuses his practice in the area of probate and trust litigation.

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