The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/SB 1064
INTRODUCER: Banking and Insurance Committee and Senator Powell
SUBJECT: Wills and Estates
DATE: February 13, 2024 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Collazo Cibula JU Favorable
2. Thomas Knudson BI Fav/CS
3. Collazo Twogood RC Favorable
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1064 provides and clarifies procedures to resolve probate disputes regarding property
owned by spouses in this state but acquired while the spouses lived in one of the nine community
property states.
In a community property state, property acquired during a marriage is presumed to be owned
50/50 by the spouses regardless of how it may be titled. Once the spouses move to this state,
state law provides that community property generally retains its status as community property. In
1992, the Legislature adopted the Florida Uniform Disposition of Community Property Rights at
Death Act, to provide guidance for preserving the rights of a surviving spouse in any such
community property upon a spouse’s death if probate is opened in this state.
Nothing in the Act requires a surviving spouse to make a probate creditor claim to preserve his
or her community property rights. However, a recent court case held that probate creditor claim
procedures apply to title disputes arising under the Act, including the statute of limitations period
and the two-year statute of repose applicable to such claims.
To address these issues, the bill amends and repeals various provisions of the Act, and other
related provisions of the Florida Probate Code, to:
 Clarify existing law by exempting title disputes arising under the Act from:
o The term “claim” as defined in the Florida Probate Code.
BILL: CS/SB 1064 Page 2
o The limitations and the two-year statute of repose applicable to probate creditor claims
under the Florida Probate Code.
 Create a new dispute resolution mechanism and two-year statute of repose specifically
designed for title disputes arising under the Act.
 Make targeted and narrowly-focused modifications to the Act and other related provisions of
the Florida Probate Code to improve clarity and reduce the risk of unintended forfeitures of
the property rights the Act is intended to preserve.
The bill also ensures the availability of necessary information about deceased individuals is
contained in the land records maintained by the Clerks of the Circuit Courts so that proper heirs
can be identified in the chain of title, thereby protecting the public interest of certainty in the
ownership of real property.
The bill provides that except as otherwise expressly provided in the bill, the bill takes effect upon
becoming a law.
II. Present Situation:
Community Property
The term “community property” refers to the legal theory, applicable in nine states, that most
property owned by a married person is jointly owned with the spouse.1 Most assets and debts
acquired during the marriage are considered community property and are equally owned by both
spouses, regardless of in whose name the item is titled.2
In community property states, if the couple divorces, each spouse is entitled to one-half of the
community assets and debts, including:
 Earned income generated during the marriage.
 Items purchased by either spouse during the marriage.
 Retirement accounts that are created during marriage or the value of contributions made
during marriage to pre-existing accounts.
 Bank accounts and investments accumulated during the marriage.
 Separate property that is transferred to joint accounts.
 Separate property transmuted to marital property, such as when one spouse uses their own
savings to help buy a family car in both names.3
Florida is not a community property state, but a common law property state.4 Like in most other
common law property states, how an asset is titled generally dictates who owns the asset and
1
The nine states that have community-property systems are Arizona, California, Idaho, Louisiana, Nevada, New Mexico,
Texas, Washington, and Wisconsin. Also, a community-property regime is elective in Alaska. BLACK’S LAW DICTIONARY
(11th ed. 2019).
2
Forbes Advisor, Community Property States in 2024, Aug. 23, 2022, https://www.forbes.com/advisor/legal/divorce/
community-property-states/ (last visited February 1, 2024).
3
Id.
4
See s. 61.075(8), F.S. (providing that “[t]itle to disputed assets shall vest only by the judgment of a court” and that this
statute “does not require the joinder of spouses in the conveyance, transfer, or hypothecation of a spouse’s individual
property; affect the laws of descent and distribution; or establish community property in this state” (emphasis added)); see
BILL: CS/SB 1064 Page 3
who has the ability to convey it during life or death.5 For example, in the context of dissolution
of marriage proceedings, while state law provides that equal or 50/50 shares may be the proper
starting point in making an equitable distribution of marital assets, the distribution need not be
equal.6
Florida Uniform Disposition of Community Property Rights at Death Act
Although Florida is not a community property state, many residents in the state come from
community property states. Florida is the first choice for relocating retirees in the U.S.,7 the
largest recipient of domestic state-to-state migration within the U.S.,8 and the largest recipient of
international migration to the U.S.9 At least one court has recognized that the testamentary
intentions of these new residents should be honored.10
Accordingly, the purpose of the Florida Uniform Disposition of Community Property Rights at
Death Act (the Act), which the state enacted in 1992,11 is to statutorily preserve the testamentary
“rights of each spouse in property which was community property prior to change of domicile, as
well as in property substituted therefor where the spouses have not indicated an intention to sever
or alter their ‘community’ rights.”’ The Act “thus follows the typical pattern of community
property which permits the deceased spouse to dispose of ‘his half’ of the community property,
while confirming the title of the surviving spouse in ‘her half.’”12
The Act’s Provisions
The Act applies to the disposition at death of the following property acquired by a married
person:
 Personal property, wherever located, which:
also, e.g., Herrera v. Herrera, 673 So. 2d 143, 144 (Fla. 5th DCA 1996) (providing that “Florida is not a community property
state”).
5
Joseph M. Percopo, Understanding the New Florida Community Property Trust, Part I, 96 FLA. BAR JOURNAL 4, at 16
(July/Aug. 2022), available at https://www.floridabar.org/the-florida-bar-journal/understanding-the-new-florida-community-
property-trust-part-i/ (last visited February 1, 2024).
6
See s. 61.075(1), F.S. (noting that “in distributing the marital assets and liabilities between the parties [to a dissolution of
marriage proceeding], the court must begin with the premise that the distribution should be equal, unless there is a
justification for an unequal distribution based on all relevant factors, including [the listed factors]”); see also Herrera, 673
So. 2d at 144 (explaining that application of the statutory factors in s. 61.075, F.S., may result in an unequal distribution).
7
Andy Markowitz, AARP, Top 5 States Where Retirees Are Moving, Jan. 6, 2023, https://www.aarp.org/retirement/planning-
for-retirement/info-2023/most-popular-relocation-states.html (last visited February 1, 2024).
8
Net domestic migration for Florida from April 1, 2020 to July 1, 2023 is 818,762 individuals, which exceeds all other states.
See Census.gov, Annual and Cumulative Estimates of the Components of Resident Population Change for the United States,
Regions, States, District of Columbia, and Puerto Rico: April 1, 2020 to July 1, 2023 (NST-EST2023-COMP), 2023,
https://www.census.gov/data/tables/time-series/demo/popest/2020s-state-total.html (last visited February 1, 2024).
9
Net international migration for Florida from April 1, 2020 to July 1, 2023 is 349,370 individuals, which exceeds all other
states. See Census.gov, Annual and Cumulative Estimates of the Components of Resident Population Change for the United
States, Regions, States, District of Columbia, and Puerto Rico: April 1, 2020 to July 1, 2023 (NST-EST2023-COMP), 2023,
https://www.census.gov/data/tables/time-series/demo/popest/2020s-state-total.html (last visited February 1, 2024).
10
Malleiro v. Mori, 182 So. 3d 5, 10-11 (Fla. 3d DCA 2015).
11
Chapter 92-200, s. 4, Laws of Fla., codifying ss. 732.216-732.228, F.S.
12
See Uniform Disposition of Community Property Rights at Death Act (UDCPRDA), Prefatory Note, at 3, available at
https://www.uniformlaws.org/viewdocument/act-1971 (last visited February 1, 2024). The Act, with some modifications, is
based upon the Uniform Disposition of Community Property Rights at Death Act (UDCPRDA) promulgated in 1971.
BILL: CS/SB 1064 Page 4
o Was acquired as, or became and remained, community property under the laws of another
jurisdiction;
o Was acquired with the rents, issues, or income of, or the proceeds from, or in exchange
for, community property; or
o Is traceable to that community property.
 Real property, except real property held as tenants by the entirety, which is located in this
state, and which:
o Was acquired with the rents, issues, or income of, the proceeds from, or in exchange for,
property acquired as, or which became and remained, community property under the laws
of another jurisdiction; or
o Is traceable to that community property.13
The Act provides that, upon the death of a married person:
 One-half of the property to which the Act applies is the property of the surviving spouse and
is not subject to testamentary disposition by the decedent or distribution under the laws of
succession in the state.
 One-half of the property is the property of the decedent and is subject to testamentary
disposition or distribution under the laws of succession of the state.
 The decedent’s one-half of the property is not in the elective estate.14
Additionally, the Act provides for:
 Rebuttable presumptions.15
 Perfection of title of the:
o Personal representative or beneficiary.16
o Surviving spouse.17
 Rights of a purchaser for value or lender.18
 Creditors’ rights.19
 Acts of married persons with regard to severing or altering their interests in property subject
to the Act.20
 Limitations on testamentary disposition.21
The Act also defines the term “homestead” for the purpose of its provisions22 and concludes with
a declaration that its provisions are to be so applied and construed as to effectuate their general
purpose to make uniform the law with respect to the subject of the Act among those states that
enact it.23
13
Section 732.217, F.S.
14
Section 732.219, F.S.
15
Section 732.218, F.S.
16
Section 732.221, F.S.
17
Section 732.223, F.S.
18
Section 732.222, F.S.
19
Section 732.224, F.S.
20
Section 732.225, F.S.
21
Section 732.226, F.S.
22
Section 732.227, F.S.
23
Section 732.228, F.S.
BILL: CS/SB 1064 Page 5
Johnson v. Townsend
In 2018, the Fourth District Court of Appeal decided Johnson v. Townsend.24 In that case, the
court concluded that state probate creditor claim procedures apply to title disputes arising under
the Act, which arguably resulted in the unintended forfeiture of the surviving spouse’s property
rights.25 The court reasoned that the surviving spouse’s attempt to confirm her pre-existing right
to “her half” of property to which the Act applied was a form of probate creditor “claim,” as that
term was defined under state law,26 and therefore subject to the limitations period and the two-
year statute of repose27 applicable to creditor claims.28
The Real Property, Probate & Trust Law Section of The Florida Bar has noted that nowhere
within the text of the Act, or in any other provision of the Florida Probate Code,29 is it stated that
the state’s probate creditor claim procedures apply to title disputes arising under the Act.30 Nor
does such application comport with the Act’s existing statutory scheme, which explicitly states
that one-half of the property to which the Act applies – regardless of who holds title – belongs to
the surviving spouse.31 Accordingly, the section has taken the position that the effectiveness of
the Act is diminished by the uncertainties created by the Johnson court’s ruling.32
Recordation of Probate Records
State law33 requires the Clerks of the Circuit Courts to record certain specified documents in the
Official Records. They include:
 Wills and codicils admitted to probate.
 Orders revoking the probate of any wills and codicils.
 Letters of administration.
 Orders affecting or describing real property.
 Final orders.
 Orders of final discharge.
 Orders of guardianship.34
No other petitions, pleadings, papers, or other orders relating to probate matters may be recorded
except on the written direction of the court.35
24
259 So. 3d 851 (Fla. 4th DCA 2018).
25
Id. at 859.
26
Section 731.201(4), F.S.
27
Section 733.702(1), F.S.
28
Id. at 853-59.
29
Chapters 731-735, F.S. See s. 731.005, F.S. (providing a short title for the Florida Probate Code).
30
Real Property, Probate & Trust Law Section of the Florida Bar, White Paper: The Johnson v. Townsend Fix, Florida
Uniform Disposition of Community Property Rights at Death Act (Sections 732.216-732.228, Florida Statutes), at 5, undated
(on file with the Senate Committee on Judiciary).
31
Id.
32
Id.
33
Section 28.223, F.S.
34
Section 28.223(1), F.S.
35
Id.
BILL: CS/SB 1064 Page 6
Most of the documents that must be recorded do not list the heirs in an estate.36 In a testate
estate, the will and any codicils are recorded, thereby evidencing the heirs to an estate, but there
are situations where the beneficiaries named in the will differ from the heirs or beneficiaries
indicated in the petition, due to (for example):
 The death of a beneficiary.
 An invalid devise of homestead property.
 Disclaimers.
 Non-existent beneficiaries (e.g. an incorrectly named charity).37
In an intestate estate, there is no will to record, so there is often no indication in the land records
of who the heirs to the estate are. The only resource available to determine heirs is to physically
appear at the Clerk of the Circuit Court’s office and inspect the court docket. However, clerks
often destroy court documents, in some cases as soon as 10 years after the case is closed, thereby
eliminating publicly accessible documents that could provide vital information regarding the
heirs to an intestate estate. For the heirs or their descendants to later convey property owned by
the decedent, a costly court determination of heir may be required.38
III. Effect of Proposed Changes:
Florida Uniform Disposition of Community Property Rights at Death Act
Nothing in the Florida Disposition of Community Property Rights Act requires a surviving
spouse to make a probate creditor claim to preserve his or her community property rights.
However, the Johnson court held that probate creditor claim procedures do apply to title disputes
arising under the Act, including the statute of limitations period and the two-year statute of
repose applicable to such claims.
The bill amends and repeals various provisions of the Act, and other related provisions of the
Florida Probate Code, to provide that probate creditor claim procedures should not apply to title
disputes arising under the Act.
Section 2 of the bill amends s.