           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                 FOURTH DISTRICT

                                JOAN JOHNSON,
                                   Appellant,

                                        v.

          LEE TOWNSEND, LESLIE LYNCH, ELIZABETH DENECKE
                         and LISA EINHORN,
                              Appellees.

                                  No. 4D18-432

                               [October 24, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach
County; Karen M. Miller, Judge; L.T. Case No. 502015CP001096XXXNB.

  Edward Downey of Downey | McElroy, P.A., Palm Beach Gardens, for
appellant.

    William E. Boyes of Boyes, Farina & Matwiczyk, P.A., Palm Beach Gardens,
for appellees.

GERBER, C.J.

    The decedent’s wife appeals from the circuit court’s final order granting the
decedent’s daughters’ motion to strike the wife’s “Petition to Determine and
Perfect Surviving Spouse’s Community Property Interest in Estate Assets.” The
circuit court struck the wife’s petition, which the wife filed more than two years
after the decedent’s death, for three reasons: (1) pursuant to section 733.702(1),
Florida Statutes (2015), the petition was an untimely claim against the estate;
(2) the petition was further barred by the two-year statute of repose contained in
section 733.710(1), Florida Statutes (2015); and (3) no exception to those
statutory deadlines allowed the wife to file the petition more than two years after
the decedent’s death.

   The wife argues that her petition to determine her community property
interest was not a claim, and thus not subject to any statutory deadlines. The
wife further argues that if her petition was a claim, then her petition fell within
the “trust exception” and “lien exception” to the statutory deadlines.

   We agree with the circuit court’s conclusions and, therefore, we affirm the
circuit court’s order. We will present this opinion in the following sections:
   1.   The estate administration’s timeline;
   2.   The petition’s procedural history;
   3.   The circuit court’s order; and
   4.   This appeal and our review.

                    1. The Estate Administration’s Timeline

   On January 21, 2015, the decedent died.

   On March 17, 2015, the wife, as the decedent’s nominated personal
representative under his will, filed a notice of administration of the estate.

   On March 19, 2015, the circuit court admitted the decedent’s will to probate
and, pursuant to the will, appointed the wife as the estate’s personal
representative. The circuit court also issued letters of administration to the wife.

  On March 31, 2015, the wife published a notice to creditors. The notice,
pursuant to section 733.702(1), stated in pertinent part:

           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.

           ALL CLAIMS NOT FILED WITHIN THE TIME PERIODS SET FORTH
        IN FLORIDA STATUTES SECTION 733.702 WILL BE FOREVER
        BARRED.

See § 733.702(1), Fla. Stat. (2015) (“If not barred by s. 733.710, no claim or
demand against the decedent’s estate that arose before the death of the decedent
. . . [and] no claim for personal property in the possession of the personal
representative . . . is binding on the estate, on the personal representative, or on
any beneficiary unless filed in the probate proceeding on or before the later of the
date that is 3 months after the time of the first publication of the notice to creditors
or, as to any creditor required to be served with a copy of the notice to creditors,
30 days after the date of service on the creditor . . . .”) (emphasis added).

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   The notice further stated, pursuant to section 733.710(1)’s two-year repose
deadline:

        NOTWITHSTANDING THE TIME PERIOD SET FORTH ABOVE,
      ANY CLAIM FILED TWO (2) YEARS OR MORE AFTER THE
      DECEDENT’S DATE OF DEATH IS BARRED.

See § 733.710(1), Fla. Stat. (2015) (“Notwithstanding any other provision of the
code, 2 years after the death of a person, neither the decedent’s estate, the
personal representative, if any, nor the beneficiaries shall be liable for any claim
or cause of action against the decedent, whether or not letters of administration
have been issued, except as provided in this section.”).

   On June 30, 2015, the three-month claims period under section 733.702(1)
expired. By that time, the wife had not filed a claim or other pleading against
the estate to determine her alleged community property interest.

   On January 21, 2017, the two-year repose period under section 733.710(1)
expired. By that time, the wife still had not filed a claim or other pleading against
the estate to determine her alleged community property interest.

                     2. The Petition’s Procedural History

    On September 6, 2017 (two years eight-and-a-half months after the
decedent’s death), the wife filed her “Petition to Determine and Perfect Surviving
Spouse’s Community Property Interest in Estate Assets.” The wife’s petition,
filed pursuant to sections 732.216–.228, Florida Statutes (2015) (known as the
“Florida Uniform Disposition of Community Property Rights at Death Act”)
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, a community property state. See
§ 732.219, Fla. Stat. (2015) (“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.”).

   The decedent’s daughters filed a motion to strike the wife’s petition. The
daughters’ motion and supplemental memorandum argued that the wife’s
petition was untimely under sections 733.702(1), 733.710(1), and 732.223.
Section 732.223 states:

         If the title to any property to which ss. 732.216-732.228 apply was
      held by the decedent at the time of the decedent’s death, title of the
      surviving spouse may be perfected by an order of the probate court or
      by execution of an instrument by the personal representative or the
                                         3
      beneficiaries of the decedent with the approval of the probate court.
      The probate court in which the decedent’s estate is being
      administered has no duty to discover whether property held by the
      decedent is property to which ss. 732.216-732.228 apply. The
      personal representative has no duty to discover whether property held
      by the decedent is property to which ss. 732.216-732.228 apply
      unless a written demand is made by the surviving spouse or the
      spouse’s successor in interest within 3 months after service of a copy
      of the notice of administration on the surviving spouse or the spouse’s
      successor in interest.

   The wife filed her own memorandum, raising three arguments that her
petition to determine her community property interest was not a claim against
the estate subject to the statutory deadlines.

   First, the wife argued that section 732.223 shows on its face that a spouse’s
community property interest is not a creditor claim. According to the wife,
section 732.223 does not establish a date or timeframe when a surviving spouse
must file a petition to perfect a community property interest, and does not refer
to the creditor claim statutes in any way. Instead, the wife argued, section
732.223 is designed solely to limit a personal representative’s duty to search for
community property.

   Second, the wife cited section 731.201(4), Florida Statutes (2015), which
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.

Relying on that definition, the wife argued that her community property interest
was not a liability of the decedent, and therefore was not a “claim” under section
731.201(4).

    Third, the wife argued that if her petition was a claim, then her community
property interest fell within the common law “trust exception” and the statutory
“lien exception” to section 733.702(1)’s and section 733.710(1)’s deadlines. We
discuss the wife’s arguments for each of these exceptions in more detail below.

   a. The Common Law “Trust Exception”

   In support of the common law “trust exception” to the statutory deadlines,
the wife cited the pre-Probate Code case of Quintana v. Ordono, 195 So. 2d 577

                                        4
(Fla. 3d DCA 1967), and the post-Probate Code case of Scott v. Reyes, 913 So.
2d 13 (Fla. 2d DCA 2005), for an explanation of the exception.

   In Quintana, the Third District held:

         Under Florida law, if a portion of the consideration belongs to the
      wife and title is taken in the husband’s name alone, a resulting trust
      arises in her favor by implication of law to the extent that
      consideration furnished by her is used. 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. Therefore, while the husband held legal title to the
      [property], he held a one-half interest in trust for his wife.

         It is well settled that the Florida nonclaim statute, s 733.16, . . .
      does not apply so as to require the [wife] to file a claim against the
      estate of the trustee.

          . . . Such procedure does not estop the wife from obtaining her
      interest. The administrators of the husband’s estate are trustees as
      to the wife’s equitable interest.

195 So. 2d at 580 (footnotes omitted).

   In Scott, the Second District held:

          The “trust exception” . . . to the requirements of the nonclaim
      statute, as those exceptions pertain to recovery of property from an
      estate, have effectively been limited [by the Probate Code] to those
      situations where the decedent clearly held the property on behalf of
      the actual owner either by way of an express trust or some other
      clearly defined means. . . . If [] the decedent was merely in possession
      of the property but made no such assertion of ownership prior to his
      or her death, the assertion of ownership being made by the personal
      representative or heirs for the first time after the decedent’s death
      would not require the filing of a claim.

913 So. 2d at 18 (citation omitted).

   The wife, applying Quintana’s and Scott’s explanation of the “trust exception,”
argued that her community property interest qualified for the exception.
According to the wife, under Texas law, “a trust relationship exists between
husband and wife regarding the community property controlled by each
spouse[.]” Madrigal v. Madrigal, 115 S.W.3d 32, 35 (Tex. App. San Antonio
2003). Thus, the wife argued, because her community property interest
                                           5
remained titled in the decedent’s name upon his death, the decedent held the
wife’s community property interest as a trustee, and the community property
interest was exempt from the statutory deadlines.

   b. The Statutory “Lien Exception”

   As a second exception to the statutory deadlines, the wife relied upon the lien
exceptions contained in sections 733.702(4)(a) and 733.710(3), Florida Statutes
(2015).

    Section 733.702(4)(a) states: “Nothing in this section affects or prevents . . .
[a] proceeding to enforce any mortgage, security interest, or other lien on
property of the decedent.”

   Section 733.710(3) states: “This section shall not affect the lien of any duly
recorded mortgage or security interest or the lien of any person in possession of
personal property or the right to foreclose and enforce the mortgage or lien.”

   The wife, applying sections 733.702(4)(a) and 733.710(3), argued that even if
her community property interest was considered as a claim, then the vesting of
community property interest gave rise to an equitable lien which should be
excepted from sections 733.702(1) and 733.710(1).

                         3. The Circuit Court’s Order

   The circuit court ultimately entered the order, now on appeal, granting the
decedent’s daughters’ motion to strike the wife’s petition.       The order’s
conclusions of law state, in pertinent part:

         The Petition is an untimely claim against the estate pursuant to
      section 733.702(1), Fla. Stat., as it is a claim or demand against
      Decedent’s estate for personal property in the possession of the
      personal representative, which claim was filed more than 3 months
      after the notice to creditors was first published.

         The Petition is further barred by section 733.710(1), Fla. Stat.
      [which bars any claim filed more than two years after the decedent’s
      death].

         There is no “trust exception” or any other exception which allows
      [the wife] to file the Petition more than two years after Decedent’s
      death.

(paragraph numerals omitted).

                                         6
                       4. This Appeal and Our Review

   This appeal followed. To the extent our review involves interpretation of
sections 733.702’s and 733.710’s deadlines, or an examination of whether the
wife qualifies for an exception to those deadlines, our review is de novo.
See Headley v. City of Miami, 215 So. 3d 1, 5 (Fla. 2017) (“Issues of statutory
interpretation are subject to de novo review.”); Inmon v. Air Tractor, Inc., 74 So.
3d 534, 537 (Fla. 4th DCA 2011) (“This court has de novo review of a circuit
court’s application of a statute of repose . . . because it involves an issue of
law.”).

    The wife, mirroring her contentions in the circuit court, argues that her
petition to determine her community property interest, filed pursuant to the
“Florida Uniform Disposition of Community Property Rights at Death Act,” was
not in the nature of a claim, and thus not subject to any statutory deadlines.
The wife further argues that if her petition was a claim, then her community
property interest fell within the common law “trust exception” and the statutory
“lien exception” to section 733.702(1)’s and section 733.710(1)’s deadlines.

   The daughters argue that the circuit court properly struck the wife’s petition
as untimely pursuant to both section 733.702(1) and section 733.710(1) because
the wife’s petition is a claim. The daughters further argue that the petition is
not excepted from either of the above statutes, because her claim does not
constitute a lien, nor does her claim fall within the common law trust exception.

   Applying de novo review, we agree with the daughters’ arguments in six
respects.

   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.
                                        7
     Second, to the extent the decedent possessed the community property in his
name at the time of his death, the wife’s failure to make a claim upon her
community property interest within section 733.702(1)’s three-month claim
period barred her later-filed untimely claim (in the form of her petition). See §
733.702(1), Fla. Stat. (2015) (“If not barred by s. 733.710, no claim or demand
against the decedent’s estate that arose before the death of the decedent . . .[and]
no claim for personal property in the possession of the personal representative
. . . is binding on the estate, on the personal representative, or on any beneficiary
unless filed in the probate proceeding on or before the later of the date that is 3
months after the time of the first publication of the notice to creditors or, as to any
creditor required to be served with a copy of the notice to creditors, 30 days after
the date of service on the creditor . . . .”) (emphasis added).

    Third, to the extent the wife’s petition is not only a “claim” under section
731.201(4) but also a cause of action, the wife’s failure to make a claim upon her
community property interest within section 733.710(1)’s two-year claim period
barred her later-filed untimely claim (in the form of the petition). See §
733.710(1), Fla. Stat. (2015) (“Notwithstanding any other provision of the code,
2 years after the death of a person, neither the decedent’s estate, the personal
representative, if any, nor the beneficiaries shall be liable for any claim or cause
of action against the decedent, whether or not letters of administration have been
issued, except as provided in this section.”) (emphasis added).

    Fourth, the wife’s reliance upon the common law trust exception is
unavailing. The primary case upon which the wife relies, Quintana, construed
section 733.16, Florida Statutes, which was repealed in 1974 as part of the
Probate Code’s adoption in 1976. Thus, Quintana’s viability is questionable. See
Scott, 913 So. 2d at 17 (“[T]he repeal of the former Florida Probate Law and the
adoption of the Code call into question the continued viability of some of the
earlier decisions that have applied the trust exception to exclude certain types of
claims from the operation of the statute.”). Upon the Probate Code’s adoption,
“[t]he ‘trust exception’ . . . to the requirements of the nonclaim statute, as those
exceptions pertain to recovery of property from an estate, have effectively been
limited [by the Probate Code] to those situations where the decedent clearly held
the property on behalf of the actual owner either by way of an express trust or
some other clearly defined means.” Id. at 18 (citation omitted). In Scott, our
sister court, applying that limitation, concluded that the trust exception was
inapplicable in that case because the wife there “did not allege the existence of
an express trust or any other clearly defined means by which the Decedent held
the accounts on her behalf.” Id. Similarly here, the wife did not allege the
existence of an express trust or any other clearly defined means by which the
decedent held the community property interest on her behalf.


                                          8
   Fifth, the wife’s reliance upon the lien exceptions contained in sections
733.702(4)(a) and 733.710(3) is similarly unavailing. To begin with, the wife cites
no authority for her argument that the vesting of her community property
interest gave rise to an equitable lien falling under either exception. Even if we
were to consider that the vesting of her community property interest gave rise to
an equitable lien falling under section 733.702(4)(a)’s exception (“Nothing in this
section affects or prevents . . . [a] proceeding to enforce any mortgage, security
interest, or other lien on property of the decedent.”), we could not reach the same
conclusion under the plain language of section 733.710(3)’s narrower exclusion.
Section 733.710(3) states: “This section shall not affect the lien of any duly
recorded mortgage or security interest or the lien of any person in possession of
personal property or the right to foreclose and enforce the mortgage or lien.” The
wife’s “lien” is not a “duly recorded mortgage or security interest,” nor is she, in
her individual capacity, “in possession of [the subject] personal property.” The
wife also has not provided any argument that she has a “right to foreclose and
enforce the . . . lien.”

   Sixth, while we agree with the wife that section 732.223 is designed solely to
limit a personal representative’s duty to search for community property, we
disagree with the wife’s argument that sections 732.216–.228’s failure to
establish a deadline when a surviving spouse must file a petition to perfect a
community property interest means no such deadline exists. Rather, as the
daughters argue, a two-year deadline exists based on section 733.710(1)’s plain
language: “Notwithstanding any other provision of the code, 2 years after the
death of a person, neither the decedent’s estate, the personal representative, if
any, nor the beneficiaries shall be liable for any claim or cause of action against
the decedent, whether or not letters of administration have been issued, except
as provided in this section.” (emphasis added).

                                   Conclusion

   Upon the decedent’s death, the wife had the ability to perfect her community
property interest by seeking an order of the probate court pursuant to section
732.223. Because the wife’s community property interest was a “claim” as
defined in section 731.201(4), the wife had three months after the time she
published the notice to creditors to file her claim according to section 733.702(1),
and in any event had two years after the decedent’s death to file her claim
according to section 733.710(1). The wife did neither. As a result, the circuit
court properly found that the wife’s untimely claim (in the form of her petition)
was barred, and that no exception to the statutory deadlines existed. Ruling
otherwise would have left no deadline by which the wife had to file a petition to
perfect her community property interest, contrary to section 733.710(1).

   Affirmed.

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LEVINE and KLINGENSMITH, JJ., concur.

                             *          *    *

     Not final until disposition of timely filed motion for rehearing.




                                        10
