Yes. Section 733.601 of the Florida Probate Code states:
The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment. A personal representative may ratify and accept acts on behalf of the estate done by others when the acts would have been proper for a personal representative.
This “relation back” doctrine matters so that actions done before appointment can have binding effect. This can really matter for things such as meeting statutes of limitations and the enforceability of contracts.
Examples of the Relation Back Doctrine
Estate of McKenzie
In Estate of McKenzie v. Hi Rise Crane, Inc. an August 19, 2021 opinion from Florida’s First District Court of Appeal, the Court reversed the decision of the Judge of Compensation Claims and held that a petitioner’s appointment as Florida personal representative after filing a petition for benefits does relate back to the filing of the petition.
Before decedent Ronald McKenzie died in August 2018, he filed petitions for benefits (PFBs) through his attorney. The attorney dismissed the PFBs after decedent’s death.
In January 2020, the attorney filed a PFB on behalf of Terry McIntosch, in her capacity as personal representative of decedent’s Florida estate. McIntosch was not the personal representative at the time of filing. Attached to this PFB was a copy of a combined certificate of good faith and “fraud acknowledgement” signed by decedent in February 2018 and attached to the earlier PFBs filed before decedent died.
After filing the PFB, McIntosch petitioned the circuit court for appointment as personal representative. She was appointed as personal representative in July 2020.
The Employer/Carrier (E/C) moved to dismiss the pending PFB alleging that, because McIntosch was not the personal representative when she filed the PFB, it was a nullity, and asserting that the PFB was statutorily non-compliant because McIntosch was not the one who signed the attached acknowledgement.
McIntosch then moved to amend the PFB contending her appointment as Florida personal representative should relate back to the January 2018 filing date, which was just before the statute of limitations ran. McIntosch accompanied the motion with an amended PFB, attached to which was an acknowledgement signed by her.
The Judge of Compensation Claims dismissed McIntosh’s petition, finding that her appointment as Florida personal representative after filing the PFB did not relate back to the filing.
Can You File a Petition For Benefits Before Being Appointed As Personal Representative?
Yes, you can file a petition for benefits before being appointed as personal representative of an estate, because your appointment will relate back to the filing. The Florida First District Court of Appeals held:
[S]ection 733.601, Florida Statutes (2020), provides that a personal representative’s powers “relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment.” See also Cunningham v. Florida Dep’t of Child. & Fams., 782 So. 2d 913, 916 (Fla. 1st DCA 2001) (holding “when letters of administration are granted, they relate back to the intestate’s or testator’s death”) (citing Griffin v. Workman, 73 So. 2d 844 (Fla. 1954)). In Cunningham, we further held that, if a personal representative is improperly appointed and a substitute is later named, the second appointment relates back to the original complaint and the substituted personal representative may go forward with the action. Id. “It follows, from the fact that the plaintiff can amend to reflect his capacity as personal representative, that claims which are properly recoverable by the personal representative . . . will also relate back.” Id. (quoting Talan v. Murphy, 443 So. 2d 207, 209 (Fla. 3d DCA 1983)).
Here, McIntosch was prematurely identified as personal representative in the PFB because she had not yet attained that status. Logically, therefore, applying section 733.601 and the rationale in Cunningham requires that McIntosch’s appointment in July 2020 related back to January 2020 when the PFB was filed.
The Florida appellate court held that the JCC erred by dismissing the PFB. While it is probably better practice to obtain appointment as personal representative before filing claims in your capacity as personal representative, sometimes you do not have a choice but to file (such as when you are faced with a looming statute of limitations). A Florida personal representative’s powers will relate back to acts beneficial to the estate which occurred prior to appointment.
Nieves v. Senior Health
A commonly litigated issue in Florida is the requirement for all wrongful death cases to be brought in the name of the personal representative of the decedent’s estate. Florida’s wrongful death statute provides as follows:
768.20 Parties.—The action shall be brought by the decedent’s personal representative, who shall recover for the benefit of the decedent’s survivors and estate all damages, as specified in this act, caused by the injury resulting in death. When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate. The wrongdoer’s personal representative shall be the defendant if the wrongdoer dies before or pending the action. A defense that would bar or reduce a survivor’s recovery if she or he were the plaintiff may be asserted against the survivor, but shall not affect the recovery of any other survivor.
The requirement that a wrongful death claim be brought by the personal representative of an estate is strictly enforced in Florida.
When an injured plaintiff in a personal injury action dies, it is both necessary and proper for the personal representative of the decedent’s estate to be named a party in the pending action so that a survival damages claim, a wrongful death claim, or both, may continue to be pursued against an alleged tortfeasor.
Capone v. Philip Morris United States, Inc., 116 So. 3d 363 (Fla. 2013).
Florida has a comprehensive nursing home statute, setting forth rights of residents and responsibilities of the facilities. Included in the Florida nursing home statute is a provision setting forth how those rights are enforced, including on behalf of a deceased former resident:
Section 400.023 Civil enforcement.—
(1) An exclusive cause of action for negligence or a violation of residents’ rights as specified under this part which alleges direct or vicarious liability for the personal injury or death of a nursing home resident arising from such negligence or violation of rights and which seeks damages for such injury or death may be brought only against the licensee, the licensee’s management or consulting company, the licensee’s managing employees, and any direct caregivers, whether employees or contractors. A passive investor is not liable under this section. An action against any other individual or entity may be brought only pursuant to subsection (3).
(a) The action may be brought by the resident or his or her guardian, by a person or organization acting on behalf of a resident with the consent of the resident or his or her guardian, or by the personal representative of the estate of a deceased resident regardless of the cause of death.
Essentially, an action under the Florida nursing home statute over the death of a former resident operates in the same manner as any wrongful death lawsuit – the action must be brought in the name of the personal representative of the estate of the deceased.
In practice, however, it is not always possible to initially bring the wrongful death action, or as here the nursing home death action, in the name of the personal representative of the estate. There can be delays in getting a personal representative appointed, a statute of limitations could be on the verge of expiring, or the action needs to be brought immediately to force the preservation of evidence. To balance the requirement that wrongful death actions needs to be brought in the name of the personal representative with the practicalities of life, Florida courts allow wrongful death lawsuits to be filed in the name of a purported personal representative, so long as a personal representative gets appointed. The “standing” problem, that Florida law requires proper standing when a lawsuit is filed, is solved through application of the concept of “relation back.” A litigant can file in the name of a purported personal representative, and the lack of standing will be cured by allowing the purported personal representative to be treated as the personal representative when the lawsuit was initially filed, so long as the person is eventually appointed by the probate court.
But if you wait too long to be appointed personal representative, or don’t ask the court to suspend proceedings while problems are resolved in the probate court in getting the personal representative appointed, the wrongful death case can be lost. In Nieves v. Senior Health TNF, LLC, 2D22-423 (2nd DCA 2023), that is exactly what took place. A nursing home wrongful death action was filed by the plaintiff under the Florida Nursing Home Act, yet the plaintiff just never quite got around to becoming appointed as the personal representative, and never properly asked the court to stay proceedings for enough time to become appointed. The Court reasoned as follows:
The powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment.’ § 733.601, Fla. Stat. (2021).
Undisputedly, Ms. Nieves was not the personal representative when the trial court dismissed the lawsuit or when it denied her rehearing motion. Accordingly, the trial court correctly dismissed the lawsuit. See Graca v. Rosebank Mar., Inc., No. 04-14302, 2005 WL 6458603, at *2 (11th Cir. Mar. 8, 2005).
The relation-back doctrine did not apply because Ms. Nieves was never the personal representative in the trial court proceedings. See § 733.601. She did not timely cure the standing problem in the trial court.
The cases upon which Ms. Nieves relies are distinguishable; indeed, they support our conclusion. The parties in those cases obtained standing before the final order or before moving for rehearing. See Griffin, 73 So.2d at 844-46 (holding the trial court erred in dismissing the case where the daughter later qualified as administrator at the time of the dismissal and the father qualified as administrator when he petitioned for rehearing); Friedel, 327 So.3d at 1246-47 (applying the relation-back doctrine where the plaintiff filed a complaint against a deceased person and the trial court substituted the deceased’s appointed personal representative as the defendant); Lindor, 255 So.3d at 491-93 (remanding for reinstatement of the case where the plaintiff sought to substitute for the appointed personal representative before the trial court dismissed the case); Talan v. Murphy, 443 So.2d 207, 208 (Fla. 3d DCA 1983) (applying the relation-back doctrine where the plaintiff was appointed executor while the action was pending). Consequently, the trial court did not abuse its discretion when it dismissed the lawsuit without prejudice and without leave to amend.
Given the importance of being able to bring a wrongful death action, the courts in Florida make ample allowance for litigants to perfect their standing in bringing such actions. But at some point, the plaintiff needs to perfect his or her standing as personal representative, or the action will fail.
Contact probate attorney Jeffrey Skatoff to learn more.
