Katherine Herman, Personal Representative for the Estate of Steve Allen Herman, a/k/a, etc. v. Nancy Herman Bennett
278 So.3d 178
Fla. Dist. Ct. App.2019Background
- Katherine Herman was appointed personal representative of her father Steve Herman’s estate and filed a petition to determine the beneficiary of an annuity.
- A notice to creditors was first published on January 4, 2018; a mailed copy was served on Nancy Herman Bennett on January 21, 2018.
- On April 5, 2018, Bennett (the decedent’s sister) filed an answer and a statement of claim against the estate.
- Katherine petitioned to strike Bennett’s claim as untimely under section 733.702(1), arguing the three‑month limitations expired April 4, 2018 (three months after Jan. 4).
- Bennett argued the period should be computed under Fla. R. Jud. Admin. 2.514 (exclude the triggering day), making April 5 the last day to file; the trial court agreed and denied the strike.
- The First DCA reversed, holding the statute’s plain language starts the three‑month period on the date of first publication and thus expired April 4, rendering the April 5 claim untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the 3‑month period in §733.702(1) begin to run? | It begins on the date of first publication (so deadline April 4). | It begins the day after first publication per rule 2.514 (so deadline April 5). | Statute is unambiguous: period begins on the date of first publication; April 4 deadline. |
Key Cases Cited
- Jones v. Golden, 176 So. 3d 242 (Fla. 2015) (confirms §733.702(1) begins on publication and ends three months after first publication)
- Spohr v. Berryman, 589 So. 2d 225 (Fla. 1991) (calculating three‑month deadline from date of first publication)
- Strulowitz v. Cadle Co., II, Inc., 839 So. 2d 876 (Fla. 4th DCA 2003) (standard of review for striking untimely claims)
- Morgenthau v. Estate of Andzel, 26 So. 3d 628 (Fla. 1st DCA 2009) (de novo review for statutory interpretation in probate claim timing)
- W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So. 3d 1 (Fla. 2012) (statutory construction principles; look first to plain language)
- Mack v. Perri, 24 So. 3d 697 (Fla. 1st DCA 2009) (time under §733.702 runs from time of first publication)
- In re Hill, 582 So. 2d 701 (Fla. 1st DCA 1991) (computing three‑month period from publication date)
- Coley v. Estate of Odom, 500 So. 2d 188 (Fla. 1st DCA 1986) (three‑month filing deadline computed from first publication)
- Lubee v. Adams, 77 So. 3d 882 (Fla. 2d DCA 2012) (same calculation from publication date)
- Miller v. Estate of Baer, 837 So. 2d 448 (Fla. 4th DCA 2002) (deadline determined by date of first notice publication)
- Estate of Shearer ex rel. Shearer v. Agency for Health Care Admin., 737 So. 2d 1229 (Fla. 5th DCA 1999) (three‑month period expires three months after publication)
- In re Estate of Bartkowiak, 645 So. 2d 1082 (Fla. 3d DCA 1994) (same)