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Community Property Rights In Florida: File a Creditor Claim

Florida is not a community property state.  However, community property rights acquired in community property states can be enforced in 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.

What is Community Property?

Community property is everything a married couple acquires during the marriage, while living in a community property state.  Learn more about community property in general here.

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

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.


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.

What is The Deadline to File A Community Property Claim in Florida?

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.

Therefore, the law in Florida is that community property rights must be pursued under the same deadlines as creditor claims.  The deadlines are fast, and can easily be missed by the unwary.

Complete Guide to Florida Probate

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