Florida is not a community property state. However, community property rights acquired in community property states can be enforced in Florida, including at death.
What is Community Property?
Community property is everything a married couple acquires during the marriage, while living in a community property state. Community property rights can be claimed by a surviving spouse, in addition to the other spousal entitlements under Florida law.
What is Florida’s Uniform Disposition of Community Property Rights At Death Act?
Florida has enacted the Uniform Disposition of Community Property Rights at Death Act (the “Act”). The Act applies to personal property acquired as, or that became and remained, community property under the laws of another jurisdiction; was acquired with the rents, issues, or income of, or the proceeds from, or in exchange for, community property; or, is traceable to that community property. Section 732.217, Fla. Stat.
Section 732.219 governs the disposition of community property on death:
Upon the death of a married person, one-half of the property to which ss. 732.216–732.228 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 and is subject to testamentary disposition or distribution under the laws of succession of this state.
Johnson v. Townsend: Texas meets Florida
In Johnson v. Townsend, the court determined that community property rights are a claim that must be pursued, not an automatic right in Florida. Therefore, a timely creditor claim must be filed in Florida to enforce community property rights acquired in a community property state.Johnson v. Townsend involved a married couple that moved from Texas (a community property state) to Florida. The husband died, and was survived by his wife and his children from a prior marriage.
Decedent’s will was admitted to probate and his surviving spouse was appointed personal representative in March 2015. The surviving spouse published a notice to creditors on March 31, 2015, notifying creditors of the pending estate and containing the following standard language:
All creditors of the decedent and other persons having claims or demands against decedent’s estate, on whom a copy of this notice is required to be served, must file their claims with this court ON OR BEFORE THE LATER OF 3 MONTHS AFTER THE TIME OF THE FIRST PUBLICATION OF THIS NOTICE OR 30 DAYS AFTER THE DATE OF SERVICE OF A COPY OF THIS NOTICE ON THEM.
All other creditors of the decedent and other persons having claims or demands against decedent’s estate must file their claims with this court WITHIN 3 MONTHS AFTER THE DATE OF THE FIRST PUBLICATION OF THIS NOTICE.
ALL CLAIMS NOT FILED WITHIN THE TIME PERIODS SET FORTH IN FLORIDA STATUTES SECTION 733.702 WILL BE FOREVER BARRED.
In September 2017, over two and ½ years after decedent’s death, the surviving spouse filed a claim under the Florida Uniform Disposition of Community Property Rights at Death Act. Therein, the surviving spouse sought 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. The decedent’s children objected, and probate litigation ensued.
According to the Johnson case, the deadline to file a community property claim is 30 days, three months, or 2 years. The deadlines for filing creditor claims apply to community property claims. Here is how the Johnson case arrived at this result:
The Florida Uniform Disposition of Community Property Rights at Death Act does not contain a deadline for pursuing community property rights. The surviving spouse argued no deadline existed (the argument being that the assets are already owned by the wife under community property laws, and are not assets of the decedent). The children argued the creditor claim deadlines apply (the assets are within decedent’s probate estate and the surviving spouse needs to establish her right to the assets).
The Florida appellate court agreed with the children, stating:
First, we agree with the daughters’ argument that the wife’s petition to determine her community property interest is a “claim” as that term is defined in section 731.201(4). Section 731.201(4) defines a “claim” 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. (emphasis added). The wife’s community property interest is “a liability of the decedent.” Although the decedent’s possession of the community property in his name may have created a resulting trust, see Quintana, 195 So. 2d at 580 (“A resulting trust is generally found to exist in transactions affecting community property in noncommunity property states where a husband buys property in his own name.”), 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.
Therefore, the surviving spouse had three months after publishing the notice to creditors to file her community property claim, and in any event had two years after decedent’s death to file her claim under section 733.710. The surviving spouse did neither, and the community property claim was barred.
The following question was certified to the Florida Supreme Court
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.
The Florida Supreme Court denied the surviving spouse’s petition to review the decision.
2024 Florida Probate Legislation
On June 13, 2024, Governor DeScantis signed HB 923 to amend the Florida Probate Code, including clarifying how community property rights can be preserved, legislatively overruling the Johnson case. The legislation also removes community property status from certain investments.
Elimination of community property status for reinvestment in tenancy by the entireties property.
As explained by the House Analysis, the bill:
Amends s. 732.225, F.S., to provide that the reinvestment of any community property in real property located in Florida which is or becomes real or personal property held by tenants by the
entirety creates a conclusive presumption that the spouses have agreed to terminate the community property attribute of the property reinvested.
New Section 732.225 now reads as follows:
732.225 Acts of married persons.—Sections 732.216-732.228 do not prevent married persons from severing or altering their interests in property to which these sections apply. The reinvestment of any property to which these sections apply in real property located in this state which is or becomes real or personal property held by tenants by the entirety or homestead property creates a conclusive presumption that the spouses have agreed to terminate the community property attribute of the property reinvested.
Elimination of necessity to file creditor claim
The House Analysis pointed out the erroneous decision of the Fourth District in requiring a creditor claim to perfect community property rights:
Nothing in the Act requires a surviving spouse to make a probate creditor claim to preserve his or her community property rights. However, in 2018, the Fourth District Court of Appeal held that probate creditor claim procedures apply to title disputes arising under the Act. In other words, the court held that a surviving spouse’s attempt to confirm his or her community property rights is a probate creditor claim, and, thus, subject to the statute of limitations period and the two-year statute of repose applicable to such claims.48 This has the potential to result in the unintended forfeiture of a surviving spouse’s community property rights where the surviving spouse fails to bring a timely creditor claim and is thus forever barred from asserting his or her rights.
The House Analysis explained the amendment to the community property statute:
The bill repeals s. 732.221, F.S., relating to perfection of title of personal representative or beneficiary, and s. 732.223, F.S., relating to perfection of title of surviving spouse, and replaces these sections with newly-created s. 732.2211, F.S., which section creates a new dispute resolution mechanism for certain demands and disputes arising under the Act. Specifically, under the bill, any demand or dispute arising under the Act regarding any right, title, or interest in any property held by the decedent or surviving spouse when the decedent died must be determined in an action for declaratory relief governed by the Florida Rules of Civil Procedure, which action the bill expressly exempts from the definition of creditor claim and all rules and procedures applicable thereto. Such an action must be filed within two years after the decedent’s death or is forever barred, and the rights of any interested person who fails to timely file an action for declaratory relief under this section are forfeited. The decedent’s surviving spouse, personal representative, or any other person or entity that at any time possesses any property to which the Act applies, or may apply, is not subject to liability for any such forfeit rights, and the decedent’s personal representative may distribute the assets without liability for any such forfeit rights.
New Section 732.2211 provides as follows:
732.2211 Demands or disputes; statute of repose.—
(1)(a) Any demand or dispute arising, wholly or partly, under ss. 732.216-732.228, regarding any right, title, or interest in any property held by the decedent or surviving spouse at the time of the decedent’s death shall be determined in an action for declaratory relief governed by the rules of civil procedure. Notwithstanding any other law, a complaint for such action must be filed within 2 years after the decedent’s death or be forever barred.
(b) A action for declaratory relief instituted pursuant to this section is not a claim, as defined in s. 731.201, and is not subject to ss. 733.701- 733.710.
The new statute is a complete legislative overruling of the Johnson case, which has been widely criticized.
