Claims against the estate

Florida's answer to whether a lawsuit survives a death is one sentence long, and it has been on the books in some form since 1828. Fla. Stat. §46.021: “No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted, and defended in the name of the person prescribed by law.”

So the claim survives. That is not the interesting part. The interesting part is that surviving the death and surviving the probate deadlines are different achievements, and the second one defeats far more claimants than the first.

A person with an unquestionably valid claim — a recorded judgment, a restitution order, a wrongful-death case that would have been worth seven figures against a living defendant — can lose the whole thing to a notice published twice in a newspaper they have never heard of, in a county they have never visited, three months earlier.

This page is the calendar. It is the most useful thing on this site if someone who owes you money, or who harmed you or someone you love, has died.

What survives, what abates, and the wrongful-death exception

§46.021 is the general rule, and it runs both directions. A claim the decedent had against someone else survives for the estate to pursue. A claim someone else had against the decedent survives against the estate. §768.20 says the same thing about defendants in plain words: if the wrongdoer dies, the wrongdoer's personal representative becomes the defendant.

There is one important carve-out, and it surprises people because it looks like the opposite of a survival rule. Under §768.20, when a person dies from the injury, the personal injury action does not survive — any pending personal-injury action abates — and is replaced by a wrongful death action, brought by the decedent's personal representative, recovering for the benefit of the statutory survivors and the estate. That is not a claim being extinguished. It is one claim being exchanged for a differently measured one, with a different plaintiff, a different set of beneficiaries, and its own two-year limitation period under §95.11.

Which produces the situation that generates most of the confusion in this area: two estates, and no living party on either side. A deceased claimant's personal representative suing a deceased defendant's personal representative is entirely ordinary, and it means both probate files matter, on two separate schedules.

The criminal side behaves differently again. A prosecution abates on the defendant's death. A restitution order already entered does not — in the federal system, 18 U.S.C. §3613(b) puts the unpaid balance on the estate and keeps the lien in place until the estate receives a written release.

Florida's creditor-claim process, in order

Chapter 733 runs the claims process as a sequence of published dates. Learn the sequence once and the whole area stops being mysterious.

• The notice to creditors is published. Under §733.2121, the personal representative must promptly publish a notice to creditors once a week for two consecutive weeks in a newspaper in the county where the estate is administered. The notice names the decedent, the file number, the court, the representative and the attorney, and states the first publication date. That date is the one everything runs from.
• The representative must go looking for creditors. §733.2121 also requires a prompt, diligent search for creditors whose names and addresses are reasonably ascertainable — including those with unmatured, contingent or unliquidated claims — and requires a copy of the notice to be served on them. “Impracticable and extended searches are not required,” but a cursory one is not a diligent one.
• The claim is filed — in the probate. Under §733.702, a claim is barred unless filed by the later of 3 months after the first publication or 30 days after service on a creditor entitled to be served. It applies to claims that arose before the death, whether due or not, direct or contingent, liquidated or unliquidated.
• The representative may object. Under §733.705, an objection must be filed by the later of 4 months from first publication or 30 days from the timely filing or amendment of the claim.
• Then the claimant has 30 days. From service of the objection, the claimant has 30 days to bring an independent action on the claim. The court may extend it for cause. Miss it and the claim is gone, however good it was.
• And behind all of it, the two-year wall. §733.710: 2 years after the death, neither the estate, the personal representative, nor the beneficiaries are liable for any claim or cause of action against the decedent. It runs from the date of death. It does not wait for a probate to be opened, for a notice to be published, or for anyone to find out.

Two features of that list do the damage. The three-month clock starts on a publication, not on notice to you. And the two-year wall runs whether or not anybody ever opened an estate — so a family that quietly does nothing for two years can extinguish claims by inaction.

The exceptions that save claims, and the one that saves most of them

The bars are hard but they are not absolute. §733.702(3) allows the court to grant an extension, and it lists the only three grounds: fraud, estoppel, or insufficient notice. Insufficient notice is the one that does real work, and it has constitutional weight behind it — a personal representative who could reasonably have identified a creditor and did not serve them has a problem, not just a bad look.

Then §733.702(4), which is where most surviving claims live. The section does not affect or prevent:

• A proceeding to enforce a mortgage, security interest, or other lien on the decedent's property. Secured creditors are not on the claims calendar in the same way, and §733.710(3) likewise preserves recorded mortgages, security interests and possessory liens from the two-year bar.
• A proceeding to establish liability that is covered by casualty insurance — to the limits of that coverage only. This is the provision every accident lawyer knows and most families do not. If the deceased defendant had liability insurance, a claimant may generally proceed to establish liability up to the policy limits even where the claims deadline has passed. It reaches the insurance, and only the insurance.
• A cross-claim or counterclaim in an action the estate itself started, capped at the estate's recovery in that action. If the estate sues you, you may answer back.

That casualty-insurance carve-out is why a wrongful-death claim against a deceased driver is often still viable when a contract claim against the same estate is dead. The policy is the target; the estate is only the route to it. It is also why the first question in any claim against a deceased defendant is not “what did they own?” but “what were they insured for?”

None of this changes what happens if the estate itself has to pay. §733.707 puts administration costs and fees in Class 1, funeral expenses to $6,000 in Class 2, and debts and taxes with preference under federal law in Class 3. Ordinary judgment creditors are Class 8 — last, with everybody else who won a lawsuit.

What to do, on both sides of it

If you are the claimant. Search the probate records in the county where the person lived, and in any county where they owned property, in the first week. Get the first publication date. File a statement of claim in the probate file — not only a lawsuit — inside the §733.702 window, and file it even if the amount is unliquidated or contingent, because the statute expressly covers those. If an objection is served, calendar 30 days that same day. If there might be liability insurance, say so in writing early, and preserve the §733.702(4)(b) route.

If you are the personal representative. Publish immediately, because the clock does not start until you do, and every week you wait is a week the estate stays exposed. Do the diligent search properly and document it — the search is what makes the bar stick, and a defective one is the “insufficient notice” that reopens the case later. Then object where there are grounds and pay where there are not, in the §733.707 order, and do not distribute while a claim or a forfeiture is live. A representative who pays beneficiaries ahead of creditors is the person the creditors sue next.