Forfeiture and the estate

Most claims against an estate behave the same way. Someone says the decedent owed them money, they file in the probate, the personal representative pays or objects, and a judge sorts it out on the schedule Chapter 733 sets.

Forfeiture does none of that. A forfeiture claim is not a claim against the estate at all. It is a claim about a specific piece of property, brought in a separate case, on the theory that the property is contraband or the proceeds of an offence, and that the government's title to it dates from the moment of the offence rather than the moment of the seizure.

The practical result is that a personal representative can be running two proceedings at once, on two calendars, under two burdens of proof — and the shorter, harsher calendar is the one nobody warned them about. Forfeiture deadlines are measured in days. Probate deadlines are measured in months.

This page is about the three things that decide these cases: relation back, the innocent-owner defences, and what to do in the first two weeks.

The government's title dates from the offence, not the seizure

The relation-back doctrine is written into both federal branches. 21 U.S.C. §853(c), the criminal forfeiture provision, says it flatly: “All right, title, and interest in property described in subsection (a) vests in the United States upon the commission of the act giving rise to forfeiture.” 18 U.S.C. §981(f) does the same job on the civil side.

Read literally, that would mean nobody after the offence could ever hold good title — not a buyer, not a spouse, not an heir. The Supreme Court declined to read it literally. In United States v. 92 Buena Vista Ave., 507 U.S. 111 (1993), the Court held that the government does not become the owner at the instant of the offence; relation back operates once a judgment of forfeiture is entered, and until then a person holding the property may be an owner entitled to raise the statutory innocent-owner defence. The Court also held that the defence is not limited to purchasers — someone who innocently receives the property as a gift may raise it too.

For estates, the consequence is precise and unforgiving. If the conduct predates the death, the government's claimed interest predates the death as well. A decedent cannot devise property they are found never to have lawfully owned, and a beneficiary does not acquire a better title than the estate had. Inheritance is not a laundering event.

It cuts the other way too, which is the part people miss. Because the government's title is only perfected by a judgment, an heir or surviving spouse is a real claimant with a real defence — not a stranger to the case — right up until that judgment is entered. Somebody has to show up and say so.

Innocent owners, and the probate clause hidden in a forfeiture statute

There are three defence regimes and they are not interchangeable. Identify which one you are in before doing anything else.

• Federal civil forfeiture — 18 U.S.C. §983(d). The claimant bears the burden, by a preponderance. If the interest existed when the conduct occurred, an innocent owner is one who did not know of the conduct, or who on learning of it did all that could reasonably be expected to stop the use of the property. If the interest was acquired after the conduct, the claimant must be a bona fide purchaser for value who did not know and was reasonably without cause to believe the property was subject to forfeiture.
• Federal criminal forfeiture — 21 U.S.C. §853(n). Third parties do not join the criminal case; they file a petition in an ancillary proceeding within 30 days of notice. Two grounds only: a legal interest superior to the defendant's at the time of the offence, or bona fide purchaser status. Preponderance, on the petitioner.
• Florida — §932.703(7). Florida flips the burden. Property may not be forfeited unless the seizing agency establishes, by a preponderance, that the owner knew or should have known after reasonable inquiry that the property was being used unlawfully. A lienholder's interest survives unless the agency proves actual knowledge when the lien was made.

Then there is the provision that belongs on a probate site more than anywhere else. 18 U.S.C. §983(d)(3)(B) says an otherwise valid claim cannot be denied because the claimant gave nothing of value, where four conditions are met: the property is the claimant's primary residence; losing it would deprive them of the means to maintain reasonable shelter for themselves and their dependents; the property is not, and is not traceable to, the proceeds of any criminal offence; and the claimant acquired the interest through marriage, divorce or legal separation, or “was the spouse or legal dependent of a person whose death resulted in the transfer of the property to the claimant through inheritance or probate.”

Congress wrote a probate exception into the civil forfeiture code, for exactly one situation: a widow, widower or dependent living in the house. It is narrow, and it is the single most useful sentence in this area for an ordinary family.

One more constitutional backstop. Austin v. United States, 509 U.S. 602 (1993), held that the Eighth Amendment's Excessive Fines Clause applies to civil forfeitures that are punitive, and Timbs v. Indiana, 586 U.S. 146 (2019), held that the clause binds the states. Honeycutt v. United States, 581 U.S. 443 (2017), held that criminal forfeiture under §853 reaches only property the defendant actually obtained — there is no joint and several liability for a co-conspirator's take. Disproportion and over-reach are arguments, not just complaints.

The Contraband Forfeiture Act, and why 2016 matters

Florida's statute is the Florida Contraband Forfeiture Act, §932.701 through §932.7062, with roots going back to chapter 74-385 and the 1980 amendments. It is civil and in rem, and §932.701 defines “contraband article” across a dozen categories — controlled substances and the equipment used with them, gambling devices, and property used in or acquired with the proceeds of specified offences.

§932.703(1)(a) contains the sentence that puts this statute in a probate archive: seizure is authorised where the owner is arrested, cannot be identified, is a fugitive — or is deceased. Death is an express category. The legislature contemplated exactly this situation and wrote it down.

Chapter 2016-179, the reform enacted that year, changed the arithmetic sharply in a claimant's favour. §932.704 now requires the seizing agency to prove beyond a reasonable doubt that the article was used in violation of the Act — the criminal standard, applied in a civil case, replacing the clear-and-convincing standard that came before. §932.703(2) requires the agency to apply within 10 business days of the seizure for a court order determining whether probable cause existed. Fees and costs can be awarded to a claimant where no probable cause is found, and where the agency did not proceed in good faith or grossly abused its discretion.

§932.703(9) adds an affirmative defence that the connection between the property and the underlying violation was incidental or entirely accidental. And §932.7055 governs what happens after: liens preserved by the court are satisfied out of the property or its sale, costs come next, and the remainder goes to law enforcement trust funds or general revenue depending on the agency. Once it is there, it does not come back to the estate.

What a personal representative should actually do

The failure mode in these cases is not a bad argument. It is silence. Forfeiture proceedings resolve by default constantly, because the person who would have claimed the property has died and nobody stepped into their place.

• Work out which proceeding it is — federal or state, criminal or civil — in the first week. The deadlines, the burdens and the forum are different in each, and the seizure paperwork says which one you are in.
• Calendar the forfeiture deadlines before the probate deadlines. A 30-day §853(n) petition window and a 10-business-day probable cause requirement move faster than anything in Chapter 733.
• File the claim or petition in the estate's own name. The decedent's criminal defence lawyer is not counsel for the estate, and the criminal case may be abating while the civil case continues.
• Do not distribute the asset, and do not distribute around it. Beneficiaries who receive property that is later forfeited have received nothing, and a representative who paid it out is the person explaining why.
• Preserve, insure and document. Maintenance and insurance during a contested forfeiture are administration expenses, and a lapse converts a legal problem into a financial one.
• Screen for the §983(d)(3)(B) residence exception immediately if a surviving spouse or dependent is living in the property. It has four conditions and they need evidence, not assertion.

And keep the estate accounting honest while it runs. A contested asset is not worth its appraised value; it is worth its appraised value times the odds. Inventorying it at full value and telling beneficiaries what they are getting is how a personal representative ends up personally uncomfortable.