          Third District Court of Appeal
                                   State of Florida

                             Opinion filed January 23, 2019.
             Not final until disposition of timely filed motion for rehearing.

                                   ________________

                                    No. 3D18-297
                               Lower Tribunal No. 14-455
                                  ________________

                                  Camille Lee, etc.,
                                        Appellant,

                                            vs.

                                      Nicole Lee,
                                        Appellee.

         An Appeal from the Circuit Court for Miami-Dade County, Jerald Bagley,
Judge.

      Cobiella Law Firm, P.A., and Lorenzo Cobiella, Mercy Londono and Thomas
Fossler, for appellant.

         Jorge L. Gonzalez, P.A., and Jorge L. Gonzalez, for appellee.


Before LOGUE and SCALES, JJ., and LAGOA, Associate Judge.

         SCALES, J.

         Appellant Camille Lee, the personal representative of the Estate of Andre Lee,

appeals a trial court order that strikes a previously filed disclaimer, whereby appellee
Nicole Lee disclaimed her interest in the decedent’s estate. We reverse because the

probate court improperly determined both that the disclaimer was legally insufficient

and was somehow violative of Florida’s statute of frauds.

      I. Facts

      Andre Lee died intestate and was survived by his three children: appellant

Camille Lee, Bruce Lee, and appellee Nicole Lee. The estate was composed of two

principal assets: (i) real property located in Miami, and (ii) settlement proceeds from

a wrongful death claim.

      On July 14, 2014, the probate court issued an order appointing Camille Lee

as the personal representative of Andre Lee’s estate and also issued the letters of

administration for the estate. The record reflects that on July 8, 2014, prior to

Camille Lee’s appointment, Nicole Lee executed a document prepared by Camille

Lee’s attorney, styled “Disclaimer of Interest in Property of Estate.” Nicole Lee’s

signature on this disclaimer was witnessed by two persons and notarized. The

disclaimer reads as follows:

             I, Nicole Lee, residing at 15711 SW 137 Avenue, Apartment 205,
      Miami, Florida, 33157, hereby irrevocably disclaim all right, title, and
      interest, current or prospective in or to the property described below, to
      which I am a beneficiary from the estate of Andre Lee, the creator of
      the interest,

              All Estate assets

            I acquired knowledge of the interest in the property on January
      6, 2014, and this disclaimer is filed within a reasonable time thereafter.


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      Subsequently, on December 11, 2014, Camille Lee filed a petition for

discharge seeking distribution of the estate’s assets. On April 9, 2015, Camille Lee

filed the disclaimer with the probate court, and the probate court, on the same day,

entered an order granting the distribution of assets.

      Approximately a year later, on May 24, 2016, Nicole Lee filed an objection

to the petition for discharge, arguing that the disclaimer she had signed and delivered

to the personal representative of the estate was deficient. The probate court held a

hearing on August 22, 2017, which continued on November 15, 2017, and ultimately

determined that the disclaimer was both legally insufficient under section

739.104(3) of the Florida Statutes and violative of the statute of frauds because the

disclaimer did not specifically identify the real property being disclaimed. The

probate court then denied Camille Lee’s amended petition for distribution and

discharge as it related to the estate’s real property, and denied Camille Lee’s motion

for rehearing.

      Camille Lee, as personal representative, timely appealed this order. We have

jurisdiction pursuant to Florida Rule of Appellate Procedure 9.170(b)(15).




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      II. Analysis1

      The Florida legislature has codified the requirements for disclaimer of

property in chapter 739, the Florida Uniform Disclaimer of Property Interests Act.

Pursuant to section 739.104 of the Florida Statues, a person may disclaim any

interest in or power over any property or power of appointment. Unless otherwise

stated, a disclaimer filed under chapter 739 is unconditional. § 739.104(1), Fla. Stat.

(2014).

      In order for a disclaimer to be effective, a disclaimer must: (i) be in writing,

(ii) declare that the writing is a disclaimer, (iii) describe the interest or power

disclaimed, (iv) be signed by the person making the disclaimer, (v) be witnessed and

acknowledged in the manner provided for by deeds of real estate, and (vi) be

delivered in the manner provided in section 739.301 of the Florida Statutes.2 §

739.104(3), Fla. Stat. (2014).

      Section 739.601 provides additional requirements if the disclaimer is to be

recorded, thus providing constructive notice to anyone conducting a title search that

might involve real property that has been disclaimed. See § 739.601(1) - (2), Fla.


1
 Because we are called on to review a pure question of law (i.e., the probate court’s
determination that the subject disclaimer is legally insufficient), our review is de
novo. In Re Benitez, 250 So. 3d 153, 155 (Fla. 3d DCA 2018).
2
  “In the case of a disclaimer of an interest created under the law of intestate
succession . . . [t]he disclaimer must be delivered to the personal representative of
the decedent’s estate.” § 739.301(2)(a), Fla. Stat. (2014).

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Stat. (2014). This statute provides that a disclaimer “relating to real estate does not

provide constructive notice to all persons unless the disclaimer contains a legal

description of the real estate to which the disclaimer relates and unless the disclaimer

is filed for recording in the office of the clerk of the court in the county . . . where

the real estate is located.” § 739.601(1), Fla. Stat. (2014). The statute further

provides as follows: “An effective disclaimer meeting the requirements of

subsection (1) constitutes constructive notice to all persons from the time of filing.

Failure to record the disclaimer does not affect its validity as between the

disclaimant and persons to whom the property interest or power passes by reason

of the disclaimer.” § 739.601(2), Fla. Stat. (2014) (emphasis added).

      Hence, if the disclaimer is to be recorded to provide constructive notice, then

the disclaimer must contain a legal description of the real property. It is clear,

though, from subsection (2) of this statute, that a non-recorded disclaimer is valid as

between the disclaimant and the person to whom the property passes by reason of

the disclaimer, regardless of whether the disclaimer includes a description of the real

property. If the legislature had intended for all disclaimers of real property, whether

recorded or not, to contain a legal description, there would have been no need in

section 739.601(1) to include a requirement of a legal description for disclaimers

that would be recorded.




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         The instant disclaimer meets each statutory requirement found in section

739.104(3). While the absence of a legal description of the subject property renders

the disclaimer incapable of recordation under section 739.601, the lack of a legal

description does not otherwise affect its validity.

         Finally, we note that the trial court summarily determined that the disclaimer

did not meet the requirements of the statute of frauds, section 725.01 of the Florida

Statutes.3 Even if Florida’s statute of frauds were to apply to disclaimers of real

property governed by chapter 739, the subject disclaimer is in writing and signed by

Nicole Lee – i.e., “the party to be charged therewith.” Id. Therefore, the disclaimer

appears to meet the statute’s requirements.

         III. Conclusion

         Nicole Lee’s disclaimer foregoing any interest in her father’s estate assets met

the statutory requisites of section 739.104(3); and, even if the statute of frauds is

applicable to such disclaimers, Nicole Lee’s disclaimer appears to meet the statute’s


3
    Florida’s statute of frauds provides in pertinent part:

         No action shall be brought . . . upon any contract for the sales of lands
         . . . or of any uncertain interest in or concerning them . . . or upon any
         agreement that is not to be performed within the space of 1 year from
         the making thereof . . . unless the agreement or promise upon which
         such action shall be brought, or some note or memorandum thereof
         shall be in writing and signed by the party to be charged therewith or
         by some other person by her or him thereunto lawfully authorized.

§ 725.01, Fla. Stat. (2014).

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requirements that the agreement or promise be in writing and signed by the party

against whom the writing is proffered. We reverse the order on appeal and remand

for proceedings consistent with this opinion.

      Reversed and remanded.




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