Golden v. Jones
126 So. 3d 390
Fla. Dist. Ct. App.2013Background
- Harry Bruce Jones died February 2007; probate opened April 2007 and notice to creditors was published in June 2007.
- Katherine Jones (former wife) was adjudicated incapacitated in 2008 and a guardian was appointed; neither Katherine nor her guardian was ever served with a copy of the notice to creditors.
- In January 2009 (within two years of Harry’s death but after the 3-month publication period), Katherine’s guardian filed a Statement of Claim based on a 2002 Marital Settlement Agreement.
- Katherine died in 2010; Edward Golden became curator of her estate and in March 2012 sought a declaration that the claim was timely or for nunc pro tunc enlargement of time.
- The personal representative moved to strike the claim as time-barred under sections 733.702 and 733.710; the trial court granted the motion and struck the claim.
- The Fourth District reversed, holding the court must first determine whether the claimant was a known or reasonably ascertainable creditor; if so and service was never made, the limitations period in section 733.702(1) never began and the claim is timely if filed within two years of death.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a claim by a known or reasonably ascertainable creditor who was not served with notice to creditors is barred if filed after the 3-month publication period but within 2 years of death | Claim timely: if creditor was known/ascertainable and never served, the 30-day post-service clock never starts and claim is timely if filed within 2-year repose | Claim untimely: a creditor not served must still file within the 3-month publication window or obtain a court extension under §733.702(3) within 2-year repose | Reversed: court must determine whether creditor was known/ascertainable; if so and never served, claim timely if filed within earlier of 30 days after service (which never occurred) or 2 years after death |
Key Cases Cited
- In re Estate of Puzzo, 637 So.2d 26 (Fla. 4th DCA 1994) (known/ascertainable creditors not served are protected until 30 days after service or two-year repose)
- Lubee v. Adams, 77 So.3d 882 (Fla. 2d DCA 2012) (held claims by unserved creditors must be filed within three-month publication period absent timely extension)
- Morgenthau v. Estate of Andzel, 26 So.3d 628 (Fla. 1st DCA 2009) (similar holding to Lubee requiring filing during publication period unless extension sought)
- May v. Illinois Nat’l Ins. Co., 771 So.2d 1143 (Fla. 2000) (discusses applicability of probate statutes by date of death)