Can You Challenge a Transfer the Decedent Made Before Death? Florida Law

Yes — you can challenge a transfer a Florida decedent made before death, but not through a will contest. A deed, a joint bank account, a pay-on-death designation or a beneficiary change completed before death never enters the probate estate, so challenging transfers made before death in Florida requires a separate civil action — on grounds of undue influence, lack of capacity, fraud, forgery, abuse of a power of attorney, or exploitation of a vulnerable adult.

That distinction is why so many Florida families feel they have no remedy when they do. Here is how it usually looks.

When a parent dies and the family finally sees the paperwork, the shock is usually not what the will says. It is what is missing. The house was deeded to one child two years ago. The bank accounts are all joint with somebody. The annuity has a new beneficiary. By the time probate opens, there is almost nothing left to divide.

Then the family hires a lawyer to contest the will, and learns that the will contest cannot reach any of it.

This page explains what can actually be done about a lifetime transfer — a deed, a joint bank account, a pay-on-death designation, a beneficiary change, a gift moved by an agent under a power of attorney — and which claim, which court, which burden of proof, and which deadline applies to each.

Why Doesn’t Contesting the Will Fix a Transfer Made Before Death?

Because a will contest cannot reach a lifetime transfer — there is nothing in the will to contest.

A Florida will operates only on probate assets — property the decedent still owned, in their own name, at the moment of death. A completed lifetime transfer removes the asset from that pool before death ever happens. The deed is recorded. The account is retitled. The beneficiary form is on file with the insurer. None of it passes under the will, so setting the will aside changes nothing about who holds it.

These are sometimes called will substitutes or non-probate assets, and they are now how most wealth actually moves at death. The instrument that governs them is the deed, the signature card, or the beneficiary designation — not the will.

So the remedy is different. Instead of an objection filed in the probate proceeding, you bring a separate civil action asking the court to undo the transfer itself: to cancel a deed, to declare that account funds belong to the estate, to impose a constructive trust on what was taken, or to hold an agent liable for what they moved. Depending on the asset and the claim, that action may be filed in the probate division as an adversary proceeding or on the civil side of the circuit court.

The good news is that the substantive law is largely the same. This is why a Florida will contest cannot reach a lifetime transfer. Florida applies the same undue-influence framework to lifetime transfers that it applies to wills — Clemons v. Thornton, 993 So. 2d 1054 (Fla. 1st DCA 2008) · Chase Federal Savings & Loan Ass’n v. Schreiber, 479 So. 2d 90 (Fla. 1985) · Cripe v. Atlantic First National Bank of Daytona Beach, 422 So. 2d 820 (Fla. 1982) — but it applies it transaction by transaction rather than to a course of dealing. Each deed, each account, each beneficiary change is evaluated on its own facts. A family can win as to one certificate of deposit and lose as to another.

The Situations That Bring People Here

Most people arrive at this page with a specific story rather than a legal question. These are the ones we hear most, and what the law actually does with each.

“My sister took all of my mom’s money before she died.”

Usually this means one of three things, and they are legally very different. Either she was added to the accounts — in which case the fight is over § 655.79 survivorship versus a § 655.80 convenience account. Or she held a power of attorney and moved money with it — in which case § 709.2202 probably did not authorize it and § 709.2116(4) puts the burden on her. Or she simply drained the accounts and kept the money, which is conversion, civil theft, and possibly exploitation of a vulnerable adult. The first thing a lawyer will want is not your account of what happened. It is the bank statements and the signature cards.

“My brother added himself to Mom’s bank account.”

Adding a name to an account is not the same as being given the money. If he was added so he could pay her bills, that is a convenience account, and Fla. Stat. § 655.80(2) says the funds are “those of the principal only” — he owns none of it. Even a true joint account with survivorship can be undone: § 655.79(2) allows the presumption to be overcome by proof of undue influence.

“The caregiver got everything.”

Florida law takes this pattern seriously. A paid caregiver who becomes a substantial beneficiary, who was involved in arranging the transfer, and who had a confidential relationship with an elderly person is the textbook undue-influence fact pattern. And under Fla. Stat. § 709.2202, an agent who is not an ancestor, spouse or descendant generally cannot create an interest in themselves at all — which is exactly what a caregiver holding a power of attorney is.

“My mom signed the house over to my sister.” / “Dad deeded the house to one child.”

A recorded deed is not the end of the story, but the clock is running and the property can move again. See setting aside a deed — and note that the capacity standard for a deed is higher than for a will, so “she was competent to sign her will” does not settle it. If the house has already been sold or refinanced, whether you still have a remedy turns on whether the deed was void or merely voidable.

“Someone changed my dad’s beneficiary right before he died.”

Beneficiary designations can be challenged for undue influence — Lemano Investments, LLC v. RGF Athena, LLC, 390 So. 3d 154 (Fla. 3d DCA 2024) · Keul v. Hodges Boulevard Presbyterian Church, 180 So. 3d 1074 (Fla. 1st DCA 2015). But check the asset type first: a 401(k) or employer-sponsored life insurance policy is governed by federal law and the plan documents, and state-law challenges are often preempted. An individually owned IRA, an individually purchased policy, or a POD account is governed by Florida law.

“My sibling had power of attorney and wiped out her accounts.”

This is the strongest procedural position in this whole area of law, and most families do not know it. A conflicted agent must justify the transaction by clear and convincing evidence under Fla. Stat. § 709.2116(4) — the burden is on them, not you. Get the power of attorney document itself and read it against § 709.2202.

“My father remarried and his new wife changed everything.”

Blended-family cases run on the same law with one addition: a surviving spouse has rights a child does not, and a child may have rights the spouse cannot defeat. If a stepmother received lifetime transfers, the ordinary undue-influence and capacity analysis applies. If your father’s own surviving spouse was cut out by transfers to someone else, the elective share reaches assets given away in the year before death without proving anything about influence. Which side of that line you are on changes the entire strategy.

“My brother won’t show me the bank statements.”

He does not have to, and the bank will not give them to you either — financial institutions do not release a deceased customer’s records to a family member without legal authority. Records come through a subpoena once an action is filed, or through the personal representative. If your sibling is the personal representative and also the person who took the money, the court can appoint an administrator ad litem under § 733.308. Being stonewalled is not a dead end — it is a reason to open the file.

“Mom has dementia and my sister is moving money right now.”

Do not wait for a death to act. Fla. Stat. § 825.1035 allows an injunction for protection against exploitation of a vulnerable adult, available ex parte, and the court can order freezing any assets and freezing any line of credit. An emergency temporary guardianship may also be available. This is the one situation on this page where days matter.

Who Has the Right to Sue — the Estate or the Beneficiaries?

Standing is the first question that gets these cases dismissed. Whether the personal representative or the individual beneficiaries can sue to set aside a transfer depends on whether the asset was still the decedent’s at death.

If the decedent still owned it at death, the claim belongs to the estate. Under Fla. Stat. § 733.607 the personal representative takes possession of the decedent’s property, and the personal representative is the natural plaintiff.

If the asset left the decedent before death, individual beneficiaries may sue directly. Florida courts have permitted a decedent’s children to pursue claims to set aside inter vivos conveyances without requiring that the estate be joined — Parker v. Parker, 185 So. 3d 616 (Fla. 4th DCA 2016). The estate is not automatically an indispensable party to a lifetime-gift challenge. This matters enormously in practice, because it means a family does not always have to open a probate, get a personal representative appointed, and persuade that person to sue before anything can happen.

What if the personal representative is the person who took the money?

This is common. The child who held the power of attorney and moved the accounts is very often the same child nominated as personal representative.

The device is an administrator ad litem. Fla. Stat. § 733.308 provides: “When an estate must be represented and the personal representative is unable to do so, the court shall appoint an administrator ad litem without bond to represent the estate in that proceeding.” A personal representative who would have to sue himself is unable to represent the estate, and the court appoints a neutral to do it. The appointment is made under Fla. Prob. R. 5.120.

What if no probate has been opened?

Two paths. Where estate property needs protecting before a personal representative exists, the court can appoint a curator under Fla. Prob. R. 5.122. And where someone has simply seized the decedent’s property, Fla. Stat. § 733.309 — the executor de son tort statute — makes “any person taking, converting, or intermeddling with the property of a decedent” liable “to the personal representative or curator, when appointed, for the value of all the property so taken or converted and for all damages to the estate caused by the wrongful action.”

But remember Parker: for a genuinely inter vivos transfer, beneficiaries may often proceed without opening a probate at all.

Can a Right of Survivorship on a Bank Account Be Challenged?

Yes. A joint bank account with right of survivorship can be challenged in Florida, and the statute that says so is the one most articles on this subject never cite.

Fla. Stat. § 655.79(1) creates the presumption. Unless a contract, agreement or signature card expressly provides otherwise, a deposit account in two or more names “shall be presumed to have been intended” to vest all rights, title, interest and claim in the survivor at death. And critically, that vesting occurs “notwithstanding the absence of proof of any donative intent or delivery, possession, dominion, control, or acceptance.” The bank’s paperwork does a great deal of work on its own.

Fla. Stat. § 655.79(2) is the escape hatch:

“The presumption created in this section may be overcome only by proof of fraud or undue influence or clear and convincing proof of a contrary intent.”

Read that carefully, because the structure matters. There are three routes, and they are disjunctive. Fraud is one. Undue influence is a second, standing on its own. Clear and convincing proof of contrary intent is a third. A family challenging a joint account on undue influence grounds is not required to meet the clear-and-convincing standard that the third route imposes — undue influence is a named statutory basis in its own right.

That is a materially better position than most people are told they are in. We cover how Florida’s § 655.79 survivorship presumption is rebutted in more detail separately.

The married-couple default is different

Section 655.79(1) also provides that an account held by a married couple “shall be considered a tenancy by the entirety unless otherwise specified in writing.” Tenancy by the entireties carries its own consequences for creditors and for survivorship.

And under Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001), where a signature card does not expressly disclaim tenancy by the entireties, a presumption arises that a spousal account is held as entireties property — and a signature card designating “joint tenancy with right of survivorship” does not by itself constitute an express disclaimer.

The convenience account — the fact pattern nobody names

Here is the single most useful thing on this page.

The most common real story is not a gift. It is: “Mom put my brother on the account so he could pay her bills when she couldn’t get to the bank.” Florida has a statute for exactly that arrangement, and almost nobody invokes it.

Fla. Stat. § 655.80(1) defines a convenience account as a deposit account, other than a certificate of deposit, in the name of one individual — the principal — on which one or more others are designated as agents with the right to deposit, withdraw, or draw checks.

Section 655.80(2) then says:

“All rights, interests, and claims in, to, and in respect of, such deposits and convenience account and the additions thereto shall be those of the principal only.”

The agent on a convenience account owns nothing. No ownership interest during life, no survivorship right at death. The balance belongs to the principal’s estate.

Now notice what that does to the other side’s story. The defense you will actually hear is “I was only on the account to help her.” If that is true, it is not a defense. It is a description of a § 655.80 convenience account — and an admission that the money was never theirs. Get it in writing, early, before anyone has spoken to a lawyer.

POD accounts work differently again

A pay-on-death account is not a joint account and the analysis does not transfer. Under Fla. Stat. § 655.82(2), “[a] beneficiary in an account having a pay-on-death designation has no right to sums on deposit during the lifetime of any party.” There is no lifetime co-ownership to argue about. For the mechanics of what happens to a bank account when a Florida account holder dies, see our separate guide. On the death of the sole or last surviving party, the beneficiaries take in equal shares; if none survives, the funds belong to the estate.

Two Florida decisions frame this. In Brown v. Brown, 149 So. 3d 108 (Fla. 1st DCA 2014), the § 655.79 survivorship presumption was rebutted as to the joint accounts — but the court held the POD statute contains no equivalent presumption, so the POD funds passed to the named beneficiary. And in Keul v. Hodges Boulevard Presbyterian Church, 180 So. 3d 1074 (Fla. 1st DCA 2015), the First District held that a POD designation can still be challenged for undue influence, and that it was error to apply § 655.79 — which governs joint-account ownership at death — to a POD designation. Brown does not foreclose an undue influence attack on a POD account. Keul reached Totten trusts — the older “in trust for” account form — on the same footing.

Laushway v. Onofrio, 670 So. 2d 1135 (Fla. 5th DCA 1996) is also worth knowing: the probate court has jurisdiction to entertain a challenge to an inter vivos gift procured by undue influence.

Three account types, side by side

	Joint account with right of survivorship	Convenience account	Pay-on-death (POD)
Statute	§ 655.79	§ 655.80	§ 655.82
Who owns it during life	Both parties, per the account contract	The principal only — § 655.80(2)	The party only; the beneficiary has no right to the funds during any party’s lifetime
What happens at death	Presumed to vest in the survivor	Balance belongs to the principal’s estate; the agent takes nothing	Passes to surviving beneficiaries in equal shares; to the estate if none survives
The presumption	Vesting is presumed even without proof of donative intent, delivery, possession, dominion, control or acceptance	No survivorship presumption to rebut	No § 655.79 presumption applies (Brown, Keul)
How you beat it	§ 655.79(2): proof of fraud, proof of undue influence, or clear and convincing proof of contrary intent	Show the account was in fact a convenience account	Attack the designation itself — undue influence (Keul), capacity, forgery, or an agent who exceeded § 709.2202 authority
If the parties were married	Presumed a tenancy by the entireties unless otherwise specified in writing — § 655.79(1); Beal Bank	—	—

What About Beneficiary Designations, TOD Accounts and Life Insurance?

A beneficiary designation is challenged the same way any other lifetime instrument is challenged — undue influence, lack of capacity, fraud, forgery, or an agent acting beyond the authority the power of attorney actually granted. Keul confirms the designation itself is fair game.

Three traps are worth knowing before you spend money.

Divorce revokes some designations automatically. Under Fla. Stat. § 732.703(2), a designation naming the decedent’s former spouse is void as of the date the marriage was judicially dissolved, if the designation predated the dissolution — the interest passes as if the former spouse predeceased the decedent. The statute reaches employee benefit plans, IRAs, POD accounts, transfer-on-death securities, and life insurance.

But federal law overrides it on employer plans. Section 732.703(4)(a) contains an express carve-out: the statute does not apply “[t]o the extent that controlling federal law provides otherwise.” That is the ERISA safe harbor, and it is real. In Egelhoff v. Egelhoff, 532 U.S. 141 (2001), the Supreme Court held a state automatic-revocation-on-divorce statute expressly preempted as applied to ERISA plans. In Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 555 U.S. 285 (2009), the Court held the administrator properly paid the ex-spouse named in the plan documents notwithstanding her divorce-decree waiver, because ERISA requires fiduciaries to administer the plan in accordance with the plan documents.

Practically: a 401(k) or employer-sponsored life insurance policy is governed by the plan documents and federal law. An individually owned IRA, individually purchased life insurance policy, or POD/TOD account is governed by Florida law, and § 732.703 operates on it. That distinction decides cases, and it is the single most common reason a beneficiary-designation claim fails before anyone reaches the merits.

If the institution is holding the money, expect an interpleader. Where two claimants assert competing rights, the bank or insurer will often deposit the funds with the court and step out, leaving the claimants to litigate against each other. That is normal and it is usually good news — it means the money is preserved rather than paid out.

How Do You Set Aside a Deed in Florida?

The mechanics of setting aside a Florida deed start with the instrument, which is usually a quit claim deed — the one-page form that transfers whatever interest the signer has, with no warranties — though warranty deeds and enhanced life estate deeds show up too. A recorded deed looks final. It is not, and the form used matters far less than the circumstances of the signing.

Start with a distinction that changes everything, and that almost no page on this topic makes: whether the deed is void or merely voidable.

Forged deeds are void — and no buyer is protected

A forged deed is a legal nullity — void ab initio, void from the very beginning. In Wright v. Blocker, 198 So. 88 (Fla. 1940), the Florida Supreme Court held that a forged deed “is absolutely void and wholly ineffectual to pass title, even to a subsequent innocent purchaser from the grantee under such forged deed.” The Fourth District applied the same rule in Zurstrassen v. Stonier, 786 So. 2d 65 (Fla. 4th DCA 2001), holding a forged instrument had no legal effect to transfer title.

And recording does not cure it. As the Supreme Court put it in McCoy v. Love, 382 So. 2d 647 (Fla. 1979), “[t]he recording of a void or forged deed is legally insufficient to create a legal title, and affords no protection to those claiming under it.”

That is why forgery, when you can prove it, is the strongest ground available. It survives an intervening sale.

A deed procured by fraud is voidable — and a buyer may be protected

McCoy v. Love draws the line: “[w]here all the essential legal requisites of a deed are present, it conveys legal title,” and “[f]raud in the inducement renders such a legally effective deed voidable in equity.”

Voidable means the deed works until a court unwinds it — and a bona fide purchaser for value without notice, or a lender who recorded a mortgage in the meantime, may cut off the remedy entirely.

Undue influence falls on the voidable side, and Florida has said so directly.

In Schlossberg v. Estate of Kaporovsky, 303 So. 3d 982 (Fla. 4th DCA 2020), the Fourth District held that “a deed of a person alleged to be incompetent or procured by fraud, overreaching, or undue influence is voidable but is not void ab initio” — following Herminghaus v. Crofton, 187 So. 2d 347 (Fla. 4th DCA 1966), and Hassey v. Williams, 127 Fla. 734, 174 So. 9 (1937). And it drew the consequence in the next breath: “thus, the defense of a bona fide purchaser for value is available.”

The same point appears earlier in Agee v. Brown, 73 So. 3d 882 (Fla. 4th DCA 2011), where an attorney drafted an enhanced life estate deed giving the remainder to himself and his wife. The trial court treated the deed as void as against public policy; the Fourth District held that “the fact that Mr. Agee drafted the deed does not make the deed void per se, but rather raises a rebuttable presumption of undue influence.”

What that means if the house has already been sold

It means the buyer may keep it. This is the hardest thing on this page and there is no softening it.

Schlossberg is the cautionary tale, and the facts are worth knowing. A mother deeded her condominium so that the remainder went to her daughter. After she died, the daughter sold the condo to a third party for $400,000. The son then challenged the original deed as the product of undue influence. The buyer raised bona fide purchaser status — and won. The Fourth District directed entry of judgment declaring him the rightful owner of the entire condominium.

The detail that decided it: the son had known about the alleged undue influence since 2006 and did not record a lis pendens until a year after the sale. Nothing in the public record warned the buyer. That delay cost the family the property.

The three things a buyer must show

Florida applies a three-part test. The purchaser must have (1) acquired legal title, (2) paid value for it, and (3) been “innocent of knowledge of the equity against the property at the time when consideration was paid and title acquired” — DGG Development Corp. v. Estate of Capponi, 983 So. 2d 1232 (Fla. 5th DCA 2008), quoting Demosthenes v. Girard, 955 So. 2d 1189, 1192 (Fla. 3d DCA 2007). Fla. Stat. § 695.01, Florida’s recording statute, is the backbone of the protection — and note § 695.01(2), which provides that grantees by quitclaim deed are also deemed bona fide purchasers, eliminating the old common-law rule that treated them with suspicion.

Lenders get the same protection. In Jablonski v. Buckeye Development Corp., 597 So. 2d 905 (Fla. 4th DCA 1992), a jury found undue influence — meaning the title was voidable, not void — and the buyer and its mortgagee both prevailed on bona fide purchaser grounds. The court observed that had the plaintiffs proved the title was void, the outcome would have been different.

What defeats a buyer’s claim to be innocent

The whole fight is about notice — actual, constructive, or inquiry. Three routes have worked:

• A recorded lis pendens. The most reliable, and the one squarely in your control.
• Something visible in the chain of title. Constructive notice includes “all recitals, references, or matters appearing on the face of any deed forming an essential link in the chain of title” — Florida Masters Packing, Inc. v. Craig, 739 So. 2d 1288 (Fla. 4th DCA 1999). In DGG Development, a defect apparent from the record defeated buyers who had acted in good faith and even carried title insurance that missed it.
• Knowledge imputed through an agent. In Lemano Investments, LLC v. RGF Athena, LLC, 390 So. 3d 154 (Fla. 3d DCA 2024), the same person managed both the grantor and the grantee; under the sole-actor doctrine his knowledge was imputed to the buyer, and the bona fide purchaser defense failed.

Suspicious circumstances can also trigger inquiry notice — see Marucci v. Linder, 177 So. 2d 237 (Fla. 2d DCA 1965), where a mortgage assigned at a deep discount immediately after execution charged the assignees with notice. But do not over-read this. In Chase Federal Savings & Loan Ass’n v. Schreiber, 479 So. 2d 90 (Fla. 1985), the Florida Supreme Court held that a deed reciting only “love and affection” as consideration does not, by itself, put a later purchaser on notice of anything.

The practical rule

Record a lis pendens the day you file, and file quickly. A lis pendens is a recorded notice that title is being litigated. Once it is on record, no later buyer or lender can claim to have taken without notice, and the bona fide purchaser problem disappears as to them. It cannot undo a sale that already closed — Schlossberg is what that looks like — but it stops the next one.

And note the asymmetry this creates across the grounds on this page. Undue influence makes a deed voidable, so a buyer can cut off the claim. Forgery makes it void, and so does a homestead conveyance without the required spousal joinder — and a void deed conveys nothing to anyone, however innocent. Where more than one ground is available, which one you plead can decide whether the property is recoverable at all.

Homestead conveyed without the spouse joining

Article X, § 4(c) of the Florida Constitution provides that homestead may not be conveyed or mortgaged by an owner who is married without the joinder of the other spouse. A deed of homestead signed by one spouse alone has a problem regardless of how competent or uninfluenced the grantor was.

And unlike the undue-influence question above, this one Florida has answered — a deed to a third party without the required joinder is void, not merely voidable.

The Florida Supreme Court put the rule plainly in Herminghaus v. Crofton, 187 So. 2d 347 (Fla. 4th DCA 1966) · Jablonski v. Buckeye Development Corp., 597 So. 2d 905 (Fla. 4th DCA 1992) · Jameson v. Jameson, 387 So. 2d 351, 353 (Fla. 1980): “it is clear that both [spouses] must join in a conveyance of a homestead owned by one spouse to a third party.” And the First District drew the consequence in Clemons v. Thornton, 993 So. 2d 1054, 1056 (Fla. 1st DCA 2008): “A purported transfer of the homestead, not in compliance with constitutional provisions, is void” — citing Robbins v. Robbins, 360 So. 2d 10 (Fla. 2d DCA 1978), and Gotshall v. Taylor, 196 So. 2d 479 (Fla. 4th DCA 1967).

That matters enormously, and here is why. A void instrument conveys nothing — as with a forged deed, not even to a buyer who paid full value with no notice of the problem. So where the undue-influence route runs into an unresolved bona fide purchaser question, the homestead route may not. If the property was homestead, the owner was married, and the spouse did not sign, that is frequently the strongest ground on the page.

Four qualifications, each of which decides real cases.

1. It only applies to third-party transfers. Jameson holds that Art. X, § 4(c) does not require joinder in an interspousal conveyance — a sole owner may deed homestead to himself and his spouse as tenants by the entireties without the spouse joining as grantor. Fla. Stat. § 689.11(1) is constitutional as so construed.

2. Only part of a deed may fail. Clemons is the illustration: the husband’s deed created a life estate in himself and his wife and purported to give the remainder to his daughter from a prior marriage. The life estate was valid (interspousal); the remainder to the daughter was void for want of the wife’s joinder. “The fate of the intended grant of the remainder interest has no bearing on the validity of the grant of the life estate.” Do not assume the whole instrument stands or falls together.

3. The right can be waived — and often was. Under Fla. Stat. § 732.702, homestead rights may be waived “wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses.” Fair disclosure of the other spouse’s estate is required if the waiver is executed after marriage, but not before; no consideration is necessary. A prenuptial or postnuptial agreement is the usual place this shows up, so read it before relying on non-joinder.

4. Only certain people can raise it. Article X, § 4(c) “is designed to protect two classes of persons only: surviving spouses and minor children” — Lyons v. Lyons, 155 So. 3d 1179 (Fla. 4th DCA 2014). In Lyons the wife had signed the deed herself and later tried to attack it; the court held she lacked standing, observing that it “would be absurd for the party who created the alleged infirmities in the quit claim deed to be able to attack the viability of the same quit claim deed.” An adult child who is neither a minor nor the surviving spouse generally cannot use this ground at all.

Mortgages are the exception, and they work differently.

For a mortgage, the rule is settled and it is not voidness. “A mortgage of homestead property is not void when signed by only one spouse, but it is ‘ineffectual as a lien until such time as either the spouse joins in the alienation or the property loses its homestead status'” — Brown v. Towd Point Mortgage Trust 2017-6, 423 So. 3d 887 (Fla. 4th DCA 2025), quoting Pitts v. Pastore, 561 So. 2d 297, 301 (Fla. 2d DCA 1990).

Note what that means: the defect is curable. The lien springs to life if the spouse later joins, or if the property stops being homestead. Brown also confirms that the constitutional requirement overrides Fla. Stat. § 708.08(1) — the older statute providing that a married woman’s conveyance is valid without her husband’s joinder “cannot constitutionally be applied to homestead property.”

Two limits families should not overlook.

First, the debt does not disappear. Where a purchase money mortgage lien fails for non-joinder, the note holder may still be entitled to an equitable vendor’s lien or equitable subrogation — Spikes v. OneWest Bank FSB, 106 So. 3d 475, 478 (Fla. 4th DCA 2012). Brown itself reversed the foreclosure judgment but remanded for the trial court to take up exactly those alternative equitable claims. Defeating the mortgage is not the same as owning the house free and clear.

Second, inadvertence can be excused. Where a spouse’s signature was inadvertently omitted but that spouse attended the closing, knew the loan proceeds were paying for the property, and would have signed if asked, the Fourth District has held the mortgage not void — Countrywide Home Loans, Inc. v. Kim, 898 So. 2d 250 (Fla. 4th DCA 2005). In Brown the husband denied being present at any signing, which is why Kim did not save the lender there.

So the two instruments diverge: a deed to a third party without joinder is void (Clemons; Jameson), while a mortgage is not void but unenforceable as a lien until cured (Brown; Pitts). Anyone who treats the two the same way will reach the wrong answer about whether a later purchaser or lender is protected.

One caution on the deed side: we have found no Florida decision addressing whether a limitations period or laches ever bars a challenge under this ground. Assertions online that “there is no statute of limitations on a void conveyance of homestead” are stated without authority. The voidness rule is well supported; the no-deadline gloss on it is not, so do not let a case sit on that assumption.

The capacity standard for a deed is higher than for a will

This surprises families, and it is one of the most useful facts on this page.

Florida has long recognized that a greater degree of mental ability is required to make a contract than to make a will — Robbins v. Robbins, 360 So. 2d 10 (Fla. 2d DCA 1978) · Saliba v. James, 143 Fla. 404, 196 So. 832 (Fla. 1940). The standard for competence to execute a deed is whether the grantor was capable of understanding both the nature of the transaction and the significance and effect of the transaction. Compare that to testamentary capacity, which asks only whether the testator understood, in a general way, the nature and extent of their property, their relation to those who would naturally claim a benefit, and the practical effect of the will.

The organizing principle: the more complex the transaction and the greater its effect, the higher the standard of competence required.

So it is entirely possible — and it happens — that a person had capacity to sign a will the same week they lacked capacity to sign a deed. “She was sharp as a tack, she knew what she was doing” is not the end of the inquiry. It is the beginning of it.

But the presumption runs against you, and the bar is real

Two counterweights, and any lawyer who does not tell you about them is not preparing you properly.

First, capacity is presumed. A grantor’s mental capacity is “presumed once the existence of the deed is established,” and “it is the burden of the party seeking to invalidate the deed to prove that the grantor lacked capacity at the time the deed was executed” — Marcinkewicz v. Quattrocchi, 199 So. 3d 513, 515 (Fla. 3d DCA 2016), as applied in Drapp v. McDaniel, 306 So. 3d 1280 (Fla. 2d DCA 2020). See also Parks v. Harden, 130 So. 2d 626, 628 (Fla. 2d DCA 1961): “[t]he burden rests on those seeking to set aside a deed on the ground of incapacity of the grantor at the time the instrument was executed.”

Second, frailty is not incapacity. Parks puts it directly: “Mere mental weakness will not authorize a court of equity to set aside a deed if it does not amount to inability to comprehend the effect and nature of the transaction and is not accompanied by evidence of imposition or undue influence.”

Drapp is a useful illustration of how this plays out. The grantor there was gravely ill with lymphoma when he signed, and the trial court set the deed aside. The Second District reversed — because there was no testimony that the illness affected his mental capacity, and the notary who watched him sign testified he did not appear impaired. Being sick, elderly, or medicated is not the case. Evidence that the person could not comprehend the transaction is the case.

For a gift, the test sits between: whether the donor had the mental ability to understand the nature and effect of the transaction.

Lucid intervals

Capacity is judged at the moment of execution. A person with a dementia diagnosis can validly execute an instrument if capacity existed at that moment — a period during which the person “returned to a state of comprehension” is a lucid interval or lucid moment. American Red Cross v. Estate of Haynsworth, 708 So. 2d 602 (Fla. 3d DCA 1998).

Where there has been a prior adjudication of incompetency, that adjudication shifts the burden of going forward with evidence on capacity to the proponent of the instrument. Note the precision here: that is the burden of production, not the burden of persuasion, and Florida has not adopted the rule found in some other states that permanent or progressive incapacity is presumed to continue.

Florida does not have a transfer-on-death deed

Worth saying plainly, because a great many people arrive here looking for one. Florida has no transfer-on-death or beneficiary deed for real estate. If someone tells you a Florida property “transfers on death” by deed, one of two things is actually true:

• It is a completed lifetime deed — title already moved, and it can be challenged now on the grounds described above; or
• It is an enhanced life estate deed, commonly called a Lady Bird deed, in which the owner kept the right to sell, mortgage, lease and revoke during life, and the remainder passes at death outside probate.

A Lady Bird deed is challengeable, but not through a will contest — the remedy is an equitable action to cancel or set aside the deed, on undue influence, capacity, fraud or forgery.

The vehicle for a void deed

Where a deed is void — forgery being the clearest case — the action is typically to quiet title under Chapter 65, coupled with cancellation of the instrument, and a lis pendens recorded at filing. This is also the route to clearing a clouded title after deed fraud, and title insurers will generally require a recorded judgment before they will insure the property again.

Two consequences of a lifetime deed that families discover too late

Neither of these is a ground to set a deed aside. Both are reasons the transfer may have cost far more than anyone intended — and both are worth raising with a lawyer while options remain.

Medicaid. A transfer of the home for less than fair market value can trigger a transfer penalty under 42 U.S.C. § 1396p, disqualifying the person from long-term-care Medicaid for a period measured by the value given away. A deed signed to “protect the house” frequently does the opposite, at exactly the moment nursing home care becomes necessary.

Property taxes. A deed can be a change of ownership that resets the Save Our Homes assessment cap under Fla. Stat. § 193.155, re-assessing the property at just value and increasing the tax bill permanently. Section 193.155(3) excludes certain transfers — including between spouses and to a surviving spouse — but a transfer to an adult child generally is not among them.

Does the Burden of Proof Actually Shift on a Lifetime Transfer?

No — and this is the single most misunderstood point in Florida undue influence law. Most articles on this subject describe the will-contest rule and quietly assume it carries over to deeds and accounts. It does not.

Where the presumption comes from

In In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), the Florida Supreme Court held that a presumption of undue influence arises where a substantial beneficiary who occupied a confidential relationship with the decedent was active in procuring the instrument. On active procurement the Court identified criteria — lettered (a) through (g) in the opinion:

• presence of the beneficiary at the execution of the will;
• presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
• recommendation by the beneficiary of an attorney to draw the will;
• knowledge of the contents of the will by the beneficiary prior to execution;
• giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
• securing of witnesses to the will by the beneficiary; and
• safekeeping of the will by the beneficiary subsequent to execution.

The Court was explicit that it did “not determine that contestants should be required to prove all the listed criteria.” All seven are rarely present. Courts also weigh isolation from family, cognitive inequality, control over the decedent’s affairs, and abrupt departures from a settled estate plan.

Cripe carries that framework across to lifetime transfers: “[t]he rule of Carpenter is properly applied to inter vivos transfers.”

The will-contest rule: the burden really does shift

In 2002 the Legislature enacted Fla. Stat. § 733.107(2), which provides that in a transaction or event to which the presumption of undue influence applies, the presumption “implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301–90.304.”

That is a shift in the burden of persuasion, not merely production — the presumption does not evaporate when the other side offers a rebuttal. In a will contest the law is settled: the favored beneficiary must disprove undue influence by a preponderance of the evidence. Hack v. Janes, 878 So. 2d 440 (Fla. 5th DCA 2004), which explained that the amendment superseded Carpenter and Cripe to the extent they barred a true burden-of-proof shift. The Third District has applied it in will contests since — Gotshall v. Taylor, 196 So. 2d 479 (Fla. 4th DCA 1967) · Hassey v. Williams, 127 Fla. 734, 174 So. 9 (1937) · Hannibal v. Navarro, 317 So. 3d 1179 (Fla. 3d DCA 2021), and Swiss v. Flanagan, 329 So. 3d 199 (Fla. 3d DCA 2021).

The deed and account rule: the burden stays with you

No Florida appellate decision has applied § 733.107(2) to an inter vivos transfer. Not to a deed, not to a joint or POD account, not to a beneficiary designation. Every post-2020 decision addressing undue influence in a deed contest has applied the common-law Carpenter/Ballard framework instead — and there is no district split. The First, Third, Fourth and Fifth Districts all do the same thing the Second District does.

That common-law rule works very differently. Ballard v. Ballard, 549 So. 2d 1176 (Fla. 2d DCA 1989), which extended Carpenter to deeds, sets it out in four steps:

1. A plaintiff who contests a conveyance on the ground of undue influence bears the burden of proof throughout the proceedings.
2. If the plaintiff establishes a confidential relationship and active procurement, a presumption arises — placing on the beneficiary the burden of giving a reasonable explanation for the active role.
3. The beneficiary does not have the burden of disproving undue influence.
4. If the explanation is reasonable, the presumption vanishes, and the court decides whether the plaintiff has proved undue influence by the greater weight of the evidence.

That is a vanishing presumption. And how little it takes to make it vanish is the part families are rarely told: Drapp v. McDaniel, 306 So. 3d 1280 (Fla. 2d DCA 2020), cites Williamson v. Kirby, 379 So. 2d 693, 696 (Fla. 2d DCA 1980), Jordan v. Jordan, 601 So. 2d 287, 289 (Fla. 3d DCA 1992), and Sun Bank/Miami, N.A. v. Hogarth, 536 So. 2d 263, 267 (Fla. 3d DCA 1988), for the rule that only a “slight” or minimal explanation is sufficient to rebut it.

Drapp is what happens when a trial court gets this wrong. The court reversed a judgment invalidating a deed precisely because the trial judge had faulted the grantees for failing “to present any credible explanation or reason” for the transfer — putting the burden on them. The Second District held: “As the party challenging the deed — whether under a theory of incapacity or undue influence — Mr. McDaniel bore the burden of proof.” The opinion never mentions § 733.107(2).

The most recent word is the Fifth District’s, and it points the same way. Leitner v. Leitner, 391 So. 3d 1023 (Fla. 5th DCA 2024), involved a warranty deed conveying seventy acres for ten dollars. The court applied Carpenter and Ballard — citing Ballard as the case that extended Carpenter to deeds — and did not invoke § 733.107(2).

What this means for you, stated plainly

Challenging a lifetime transfer is a harder road than challenging a will. In a will or trust contest, once the presumption arises, the other side has to disprove undue influence. In a deed or account contest, you keep the burden the whole way, and the other side only has to offer a reasonable explanation to make the presumption disappear.

The substantive standard is demanding too. “A deed may only be set aside on the grounds of undue influence if the party contesting the deed shows that the will of the grantor was overcome, depriving the grantor of free agency” — Mulato v. Mulato, 705 So. 2d 57, 62 (Fla. 4th DCA 1997). Ballard frames it as requiring “duress, force, coercion, or artful or fraudulent contrivances to such a degree that there [was] a destruction of [the grantor’s] free agency and willpower.”

Two things follow, and both are strategic:

• Where a power of attorney was involved, plead it. The burden picture reverses. Under § 709.2116(4) a conflicted agent must justify the transaction by clear and convincing evidence — the mirror image of the deed rule.
• Where the argument for extending § 733.107(2) is worth making, make it. The statute says “any transaction or event,” not “any will,” and no Florida court has squarely rejected the extension — no litigant appears to have put it to an appellate court. It is a genuinely open textual argument, not a settled loss. But no trial court will assume it, so it has to be briefed.

One piece of good news: these cases resist summary judgment

Leitner also held that where evidence of active procurement gives rise to the presumption, the issue cannot be resolved on summary judgment — because deciding whether the presumption has been rebutted requires weighing evidence, which is a trial function. That matters more than it sounds. The realistic goal in most of these cases is to get past summary judgment and into discovery, where bank records, the drafting attorney’s file, and sworn testimony do the work that suspicion alone cannot.

What Florida courts actually weigh on a lifetime gift

Because the Carpenter criteria are drafted around the mechanics of executing a will, they translate imperfectly to a gift. Florida commentators working through the lifetime-transfer case law have identified a more useful set of factors:

1. The donee’s involvement in the donor’s affairs — taking over the checkbook, changing the accountant, changing the lawyer.
2. The donee’s involvement in the gift itself — who arranged it, who drove the donor there, who was in the room.
3. The donee’s relationship to the donor compared with the natural heirs — why this person, and why not the others.
4. Secrecy or openness — was the family told, or did they find out afterward.
5. The effect on a pre-existing estate plan — does the gift quietly undo a plan that stood for twenty years.
6. The donor’s physical health and mental acuity at the time.

These are drawn from the Florida case law on inter vivos gifts as synthesized in the Florida Bar Journal. No Florida court has adopted them as a formal list, which is precisely the point — the lifetime-gift side of this doctrine is less developed than the will side, and cases are won by building the factual picture rather than by ticking boxes.

Signs of undue influence: what these cases actually look like

Families usually sense something is wrong long before they can articulate why. These are the warning signs that recur in Florida undue influence cases — not a legal test, but the fact picture that tends to support one:

• Isolation. Visits get harder to arrange. Calls stop being returned, or someone is always on the line. Mail and email start going through one person.
• A new gatekeeper. One person begins scheduling the doctor, the banker, the lawyer — and sitting in on the appointments.
• New advisors appear. A longtime accountant or attorney of twenty years is replaced, and the replacement was found by the beneficiary.
• The plan changes abruptly after decades of stability — and changes in favor of the person who arranged the meeting.
• Timing clusters around a medical event. Transfers dated within days of a hospitalization, a diagnosis, a fall, a stroke, entry into hospice, or a move into a facility.
• Secrecy. The family learns about the deed, the account change, or the new beneficiary form after the fact — often after the funeral.
• Dependence. The person relied on the beneficiary for transportation, medication, meals, money, or communication with the outside world.
• Cognitive decline that everyone noticed — repeating stories, confusion about money, getting lost, a dementia or Alzheimer’s diagnosis — paired with a transaction nobody can explain.
• The beneficiary handled the paperwork. They chose the lawyer or the notary, drove to the signing, brought the pre-filled form, and kept the original document afterward.
• An unnatural result. One child gets everything and the others get nothing, with no falling-out to explain it. Or a caregiver, a neighbor, or someone who appeared in the last year receives the bulk of the estate.
• The story keeps changing about why the transfer happened.

None of these is conclusive on its own, and there are innocent explanations for every one of them. But Carpenter itself directs courts to look beyond the seven listed criteria, and Florida courts routinely weigh isolation, cognitive inequality, control over the person’s affairs, and abrupt departures from a settled plan. The more of this list a case has, the more it looks like the cases that succeed.

What Happens When Someone Uses a Power of Attorney to Take Assets?

A power of attorney is not a blank check, and Florida’s Power of Attorney Act is far more restrictive than most families — and many agents — assume. Our guide to how Florida limits an agent’s authority to make gifts under § 709.2202 covers the document itself; this section covers what happens when an agent exceeds it.

First: the authority usually was not there

Fla. Stat. § 709.2202 lists powers so consequential that a general grant of authority is not enough. The principal must have separately enumerated the power in the document and separately signed or initialed next to it. That list includes:

• creating an inter vivos trust;
• amending, modifying, revoking or terminating a trust;
• making a gift;
• creating or changing rights of survivorship;
• creating or changing a beneficiary designation;
• waiving the principal’s right to be a beneficiary of a joint and survivor annuity;
• disclaiming property and powers of appointment.

Three of those are exactly what happens in these cases. If the power of attorney does not contain the specific enumeration with the principal’s separate initials next to it, the agent had no authority to add themselves to an account, change a beneficiary, or make a gift — full stop.

One timing note: § 709.2202 took effect October 1, 2011 and applies to powers of attorney executed on or after that date. An older instrument is governed by prior law, so the date on the document matters.

Second: a non-relative agent generally cannot benefit at all

Section 709.2202 provides that an agent who is not an ancestor, spouse, or descendant of the principal may not exercise authority to create in the agent — or in anyone the agent has a legal obligation to support — an interest in the principal’s property, unless the document expressly permits it. A caregiver, a neighbor, a friend from church, a new romantic partner: none of them can be gifted the principal’s property by their own hand as agent.

Third: even where gift authority exists, it is capped

Section 709.2202(4) limits general gift authority to an amount per donee per calendar year not exceeding the annual federal gift tax exclusion — or double that where the principal’s spouse consents to split gifts. An agent with genuine gift authority who transfers a house has still blown through the cap.

Fourth — and this is the one nobody mentions — the burden is on the agent

Fla. Stat. § 709.2116(4) provides that where an agent’s exercise of power is challenged on the basis of a conflict of interest, the agent has the burden of proving by clear and convincing evidence that the action was taken solely in the principal’s interest or was authorized by the power of attorney.

Read that against the unsettled burden question on deeds. On a self-dealing power-of-attorney transaction, Florida has settled by statute what remains open elsewhere — and it settled it against the agent, at the higher standard. If the facts support framing the transaction as a conflicted one, this is very often the strongest procedural position available in the entire case.

The duties, and the remedy

Fla. Stat. § 709.2114 imposes the agent’s fiduciary duties, including acting in good faith, within the scope of authority, and — importantly — attempting to preserve the principal’s estate plan to the extent known to the agent, where preserving it is consistent with the principal’s best interest.

Fla. Stat. § 709.2117 supplies the remedy:

“An agent who violates this part is liable to the principal or the principal’s successors in interest for the amount required to: (1) Restore the value of the principal’s property to what it would have been had the violation not occurred; and (2) Reimburse the principal or the principal’s successors in interest for the attorney’s fees and costs paid from the principal’s funds on the agent’s behalf in defense of the agent’s actions.”

“Successors in interest” is what carries the claim past the principal’s death to the estate and its beneficiaries.

Under § 709.2116, a court may construe or enforce the power of attorney, review the agent’s conduct, terminate the agent’s authority, remove the agent, and grant other appropriate relief — on petition by the principal, the agent, a guardian, an interested person who demonstrates a concern for the principal’s welfare, and others. The statute also directs an award of reasonable attorney fees and costs as in chancery actions in specified proceedings.

One more point families ask about constantly: a power of attorney ends at death. Anything the agent did with the document after the principal died was done without any authority at all.

When Is This Elder Exploitation, and Why Does That Matter?

Elder financial exploitation is a civil cause of action in Florida, not only a crime. Florida’s Adult Protective Services Act creates a claim that is frequently better than the common-law alternatives, and it is badly underused.

Who it protects. A vulnerable adult under Fla. Stat. § 415.102(28) is “[a] person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.”

Note the last four words. The infirmities of aging. A person does not need a diagnosis, a guardianship, or an adjudication of incapacity to qualify.

What counts as exploitation. Section 415.102(8) gives two independent routes. Either a person who:

1. “[s]tands in a position of trust and confidence with a vulnerable adult and knowingly, by deception or intimidation, obtains or uses, or endeavors to obtain or use, a vulnerable adult’s funds, assets, or property with the intent to temporarily or permanently deprive a vulnerable adult of the use, benefit, or possession of the funds, assets, or property for the benefit of someone other than the vulnerable adult”; or
2. “[k]nows or should know that the vulnerable adult lacks the capacity to consent, and obtains or uses, or endeavors to obtain or use, the vulnerable adult’s funds, assets, or property” with the same intent.

The second route does not require proving deception or intimidation at all — only that the taker knew or should have known the adult could not consent. The statute also expressly lists breaches of fiduciary relationships, unauthorized taking of personal assets, and misappropriation of moneys as examples.

The civil action. Fla. Stat. § 415.1111 gives the vulnerable adult a cause of action against a perpetrator, and provides that it may be brought by a guardian, by a person or organization acting on the adult’s behalf with consent, “or by the personal representative of the estate of a deceased victim without regard to whether the cause of death resulted from the abuse, neglect, or exploitation.” The claim survives death.

Recoverable: actual and punitive damages, plus damages for any deprivation or infringement of a vulnerable adult’s rights. And “[a] party who prevails in any such action may be entitled to recover reasonable attorney’s fees, costs of the action, and damages.” Note that the fee provision runs to a prevailing party, not only a prevailing plaintiff.

If it is still happening: the exploitation injunction

Where the vulnerable adult is still alive and the money is still moving, waiting for a lawsuit to grind forward is the wrong answer. Fla. Stat. § 825.1035 provides an injunction for protection against exploitation of a vulnerable adult, and it has teeth.

Who may petition: the vulnerable adult in imminent danger of being exploited; that adult’s guardian; a person or organization acting on their behalf with consent; an agent under a valid durable power of attorney; or a person simultaneously petitioning for emergency temporary guardianship.

Ex parte relief is available on findings of an immediate and present danger of exploitation, likelihood of irreparable harm, substantial likelihood of success on the merits, and that the threatened injury outweighs possible harm to the respondent.

What the court can order includes restraining the exploitation, awarding exclusive possession of a dwelling, prohibiting contact, directing law enforcement — and, critically, freezing any assets of the vulnerable adult and freezing any line of credit.

That is the difference between recovering the money and litigating for three years over money that is already gone.

Reporting it to Adult Protective Services

Florida operates an Adult Protective Services program under Chapter 415, and abuse, neglect or exploitation of a vulnerable adult can be reported to the statewide abuse hotline. Anyone may report; certain professionals are mandated reporters.

Two things to understand before you call. First, an APS investigation is not a substitute for a civil case — APS can investigate and refer, but it does not recover your family’s money. Second, APS records are confidential under Fla. Stat. § 415.107, so obtaining the investigative file for use in litigation is a procedural step rather than a request. Reporting is often still the right thing to do, particularly where the person is alive and still at risk — just do not assume it starts the clock on recovery.

What Is Civil Theft, and Is It Worth Pleading?

Sometimes. Civil theft under Fla. Stat. § 772.11 carries treble damages and attorney’s fees, which makes it the most powerful claim in this area — and the easiest one to get wrong.

The upside. Fla. Stat. § 772.11 allows a person injured by a violation of the theft statutes — §§ 812.012–812.037 — or of § 825.103(1), criminal exploitation of an elderly person or disabled adult, to recover threefold the actual damages sustained, minimum damages of $200, and reasonable attorney’s fees and court costs. The addition of § 825.103(1) as a predicate matters: it means an elder exploitation fact pattern can carry treble damages.

The standard is higher. The claimant must prove the case by clear and convincing evidence — not the preponderance standard that governs most civil claims. Florida defines that standard in Schlossberg v. Estate of Kaporovsky, 303 So. 3d 982 (Fla. 4th DCA 2020) · Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983): the evidence must be credible, the facts distinctly remembered, the testimony precise and explicit, and “of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.”

The pre-suit demand is mandatory. This is where civil theft counts die. Section 772.11 provides that before filing, the person claiming injury must make a written demand for $200 or the treble damage amount. A defendant who complies within 30 days after receipt earns a written release from further civil liability. Skipping the demand is the single most common way this claim gets dismissed.

And it cuts both ways. A defendant may recover attorney’s fees where the claimant raised a claim “without substantial fact or legal support.” Civil theft is not a claim to add for leverage. Where the real dispute is over whether something was a gift, or whether a family understanding was honored, pleading civil theft can turn a winnable case into a fee exposure.

What About Tortious Interference With an Expectancy?

Florida recognizes the tort of tortious interference with an expectancy of inheritance, and families ask about it often. It is a real claim, but it is narrower than it sounds and it is usually not the right first move on a lifetime transfer.

The elements, as stated in Schilling v. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007), are “(1) the existence of an expectancy; (2) intentional interference with the expectancy through tortious conduct; (3) causation; and (4) damages.”

The limitation is the reason it is a fallback rather than a lead claim. Schilling holds that “[i]f adequate relief is available in a probate proceeding, then that remedy must be exhausted before a tortious claim may be pursued.” The tort exists to catch the case where the ordinary remedy was made impossible — for example where a defendant’s fraud was not discovered until after probate, or where extrinsic fraud prevented the challenge from being brought at all. Schilling itself allowed the claim because the defendant had concealed the decedent’s death.

Note also that the tort protects the decedent’s interest, with the disappointed beneficiary’s action being derivative — which is why Whalen v. Prosser, 719 So. 2d 2 (Fla. 2d DCA 1998), declined to allow the action before the testator had even died.

Practically: where a deed, an account, or a beneficiary designation can be attacked directly — and on this page nearly all of them can — the direct claim is the better claim. Tortious interference matters when the direct route has been foreclosed by someone else’s concealment.

If You Are the Surviving Spouse, You May Not Need to Prove Anything

Everything above requires proving something about how a transfer happened — influence, incapacity, deception, an agent exceeding authority. A surviving spouse has a route that does not.

Florida’s elective share gives a surviving spouse 30 percent of the elective estate — Fla. Stat. § 732.2065. And the elective estate is deliberately drafted to reach past probate. Under Fla. Stat. § 732.2035, it includes:

Provision	What it pulls in
§ 732.2035(3)	The decedent’s ownership interest in accounts or securities registered “Pay On Death,” “Transfer On Death,” “In Trust For,” or in co-ownership with right of survivorship form
§ 732.2035(4)	The decedent’s fractional interest in property held in joint tenancy with right of survivorship
§ 732.2035(5)	Property transferred by the decedent to the extent that, at death, the transfer was revocable by the decedent alone or with another
§ 732.2035(9)	Property transferred during the one-year period preceding death, where the transfer terminated a right or interest that would otherwise have been includible — with carve-outs for certain medical and educational payments and annual-exclusion gifts

Read that list against the fact patterns on this page. The joint account. The POD designation. The revocable arrangement. The house given away eleven months before death. The statute reaches those assets because of when and how they were transferred, not because of why. A surviving spouse who elects does not have to prove undue influence, incapacity, or anything about the transaction’s fairness.

The deadline is unforgiving. Under Fla. Stat. § 732.2135 the election must be filed by the earlier of six months after service of a copy of the notice of administration on the surviving spouse, or two years after the decedent’s death. An extension may be sought within that period, or within 40 days after termination of a proceeding affecting the amount, whichever is later — but never more than two years after death. An election may be withdrawn within eight months after death and before the court’s order of contribution.

Sections 732.2075 and 732.2145 then govern the order of contribution — which assets and which recipients actually fund the share.

If you are a surviving spouse and assets moved in the year before your spouse died, the elective share deadline is likely the most urgent date in your case.

What If the Police Are Already Involved?

Sometimes a family reports the conduct to Adult Protective Services or to law enforcement before anyone calls a civil lawyer. A parallel criminal case changes the civil case in three ways worth understanding.

It can stop your civil clock. Fla. Stat. § 772.17 provides that a civil theft action may be brought within five years after the conduct in violation terminates or the cause of action accrues — and that the period is suspended while a related criminal prosecution or other state or federal proceeding addressing the underlying criminal activity is pending, and for two years after its conclusion. A family that assumed the civil claim expired while the criminal case dragged on may be wrong.

The criminal statutes overlap with your civil claims. Section 825.103 makes exploitation of an elderly person or disabled adult a crime, and § 812.014 covers theft, including theft of property of a decedent’s estate. Section 825.103(1) is also a § 772.11 predicate, which is how a criminal exploitation fact pattern becomes a treble-damages civil claim.

A defendant who takes the Fifth pays for it in the civil case. A person facing criminal exposure who invokes the Fifth Amendment in a civil deposition may be subject to an adverse inference — the civil factfinder is permitted to draw an unfavorable conclusion from the refusal to answer, which is not true in the criminal case. In practice this is frequently the turning point, because the person who took the money cannot both refuse to explain the transfers and expect to be believed about them.

How Long Do You Have to Bring These Claims?

The statute of limitations to challenge a transfer made before death in Florida is generally four years, and five years for civil theft — shorter than families expect, and not uniform across claims. Two notes before the table. First, Fla. Stat. § 95.11 was renumbered by the 2023 tort reform, so a great deal of older legal writing cites subsection letters that no longer exist. The letters below are current. Second, the harder question is almost never the length of the period — it is when the clock started.

Claim	Statute	Period	When the clock starts
Conversion / taking or detaining personal property	§ 95.11(3)(g)	4 years	When the last element occurs — no delayed discovery
Action founded on fraud	§ 95.11(3)(i)	4 years	Discovery, per § 95.031(2)(a) — capped by a 12-year repose
Rescission / cancellation of a deed	§ 95.11(3)(k)	4 years	Generally on execution; discovery accrual where the ground is fraud
Breach of fiduciary duty	§ 95.11(3)(o) (catch-all)	4 years	Last element — no delayed discovery
Exploitation of a vulnerable adult, § 415.1111	§ 95.11(3)(e) (statutory liability)	4 years	Last element
Undue influence — to set aside a transfer	§ 95.11(3) with § 95.031(2)(a)	4 years	Termination of the influence
Civil theft	§ 772.17	5 years	Conduct terminates or claim accrues — suspended during a related criminal prosecution, plus 2 years
Negligence (for contrast — changed in 2023)	§ 95.11(5)(a)	2 years	—

The discovery question, honestly stated

In DGG Development Corp. v. Estate of Capponi, 983 So. 2d 1232 (Fla. 5th DCA 2008) · Demosthenes v. Girard, 955 So. 2d 1189 (Fla. 3d DCA 2007) · Davis v. Monahan, 832 So. 2d 708 (Fla. 2002), the Florida Supreme Court held that apart from the statutory provisions for delayed accrual in cases of fraud, products liability, professional and medical malpractice, and intentional torts based on abuse, “there is no other statutory basis for the delayed discovery rule.” It rejected delayed discovery for breach of fiduciary duty, conversion, civil conspiracy, and unjust enrichment. For those claims, the clock runs from the conduct — not from when the family found out.

But fraud is on the permitted list, and that is the opening. In Florida Masters Packing, Inc. v. Craig, 739 So. 2d 1288 (Fla. 4th DCA 1999) · Flanzer v. Kaplan, 230 So. 3d 960 (Fla. 2d DCA 2017), the Second District reversed the dismissal of an undue influence claim as untimely, holding that “undue influence claims can only fall under” the statutory category for “[a] legal or equitable action founded on fraud.” The court drew on Peacock v. Du Bois, 90 Fla. 162, 105 So. 321, 322 (1925), which held that although “[f]raud and undue influence are not, strictly speaking, synonymous,” undue influence “has been classified as either a species of fraud or a kind of duress, and in either instance is treated as fraud in general.”

Because an undue influence claim is a claim “founded upon fraud” for limitations purposes, it comes within the delayed discovery provision of § 95.031(2)(a). And as to accrual, Flanzer relied on In re Guardianship of Rekasis, 545 So. 2d 471, 473 (Fla. 2d DCA 1989), which held that the limitations period on an undue influence claim “did not begin to run until the influence terminated or someone on [the victim’s] behalf became aware of the influence.”

The Second District also rejected the argument that undue influence and fraud being distinct causes of action puts undue influence outside the statute: the phrases “founded upon fraud” and “founded on fraud” in §§ 95.031(2)(a) and 95.011(3)(j) “plainly countenance a broader class of claims than merely actions alleging fraud in general.”

Flanzer has held up. No Florida court has receded from it or criticized it, and the Third District has followed its logic that “founded upon fraud” is a broad category — in Tejera v. Lincoln Lending Services, LLC, 271 So. 3d 97 (Fla. 3d DCA 2019), applying delayed discovery to a conspiracy-to-commit-fraud claim, and more recently in Schmitz v. Schmitz, 401 So. 3d 416 (Fla. 3d DCA 2024), applying it to breach-of-fiduciary-duty claims that were themselves founded on fraud. That last one matters: it means the Davis bar on delayed discovery for fiduciary-duty claims is not absolute where the underlying conduct is fraudulent.

One scope note, stated honestly: Flanzer arose from a challenge to an irrevocable trust under Fla. Stat. § 736.0406 — not a deed or a bank account — and no Florida appellate court has yet applied its reasoning outside the trust context. The logic is not instrument-specific: the characterization of undue influence as a fraud-founded claim comes from the nature of the claim, not the nature of the document. But a lawyer arguing Flanzer on a deed or an account is making the extension for the first time, and should know that going in.

So the two decisions are not in conflict. Davis forecloses delayed discovery for conversion and fiduciary-duty claims; Flanzer opens it for undue influence by routing it through fraud. Which claim you plead can decide whether the case is timely.

The outer boundary is absolute. Section 95.031(2)(a) provides that “in any event an action for fraud under s. 95.11(3) must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered.”

One citation note. Flanzer was decided in 2017 and identified the fraud category as § 95.11(3)(j), which is what it was under the numbering then in force. The 2023 renumbering moved “[a] legal or equitable action founded on fraud” to § 95.11(3)(i), and (3)(j) now covers contracts not founded on a written instrument. The substance is unchanged — but a brief that cites the old letter today is citing the wrong subsection.

Do not try to calculate your own deadline from this table. Accrual in these cases turns on facts — when the influence ended, when the family had enough information to be on inquiry notice, whether a criminal proceeding tolled anything. Get the date evaluated.

Can You Get a Jury on These Claims?

Partly. Whether you get a jury trial in a Florida probate or estate dispute depends entirely on which claims you plead.

There is no jury in a Florida probate proceeding. Probate is an in rem proceeding, and the constitutional jury right attaches only where the right existed when Florida’s first constitution was adopted. A will contest is tried to the judge.

A civil action is different, but only as to the legal claims. Claims that are legal in nature — conversion, civil theft, statutory damages — carry a jury right. Claims that are equitable — constructive trust, cancellation of a deed, quiet title, rescission, accounting — are tried to the court.

And the framing does not control. Asking for money does not create a jury right. A claim sounding in equity stays in equity even when the relief sought is a dollar figure. Conversely, pleading a legal claim alongside the equitable ones can put part of the case in front of a jury — which changes settlement dynamics considerably, because the person who emptied an elderly parent’s accounts usually does not want to explain it to twelve strangers.

That last point is not theoretical. In Springer v. Merricks, 397 So. 3d 1044 (Fla. 4th DCA 2024), a quitclaim deed challenged on undue influence and fraud was rescinded following a jury trial. How a given case gets tried depends on which claims are pleaded and how the parties and the court handle the legal and equitable pieces — which is exactly why claim selection is a decision to make deliberately at the outset rather than discover later.

Choosing the claim: what each one actually gets you

Claim	Standard of proof	Damages	Attorney’s fees	Limitations	Jury?
Undue influence (set aside transfer)	Preponderance	Rescission / constructive trust	No	4 yrs	No — equitable
Breach of fiduciary duty by an agent, § 709.2114	Preponderance — but clear and convincing on the agent for conflicted transactions, § 709.2116(4)	Restoration under § 709.2117	Yes — §§ 709.2116, 709.2117	4 yrs	Depends on relief
Conversion	Preponderance	Actual	No	4 yrs	Yes
Civil theft, § 772.11	Clear and convincing	Treble, $200 minimum	Yes — but a defendant may recover fees on an unsupported claim	5 yrs + tolling	Yes
Exploitation of a vulnerable adult, § 415.1111	Preponderance	Actual and punitive	Yes — prevailing party	4 yrs	Yes
Constructive trust	Clear and convincing	Return of the asset	No	4 yrs	No — equitable
Cancellation of deed / quiet title	Preponderance	Title restored	No	4 yrs	No — equitable

What Remedies Are Actually Available?

Families usually think in terms of “getting it back.” Florida offers more remedies than that — cancellation of a deed, quiet title, a constructive trust, an equitable lien, an accounting, treble damages, and punitive damages among them.

• Cancellation or rescission of the instrument — the deed is set aside and title returns.
• Quiet title under Chapter 65 — the vehicle where a deed is void, as with forgery.
• Constructive trust — where the wrongdoer still holds the asset or its traceable proceeds, equity treats them as holding it for the rightful owner. Florida courts recognize the remedy in exactly these circumstances; see Saporta v. Saporta, 766 So. 2d 379 (Fla. 3d DCA 2000).
• Equitable lien — where the asset cannot be returned in kind but the value can be charged against property the wrongdoer holds.
• Disgorgement and an accounting — making the fiduciary account for what was taken and surrender the benefit.
• Money judgment — conversion, breach of fiduciary duty, statutory restoration under § 709.2117.
• Treble damages — § 772.11, where the elements and the demand requirement are met.
• Punitive damages — available under § 415.1111, but gated. Fla. Stat. § 768.72(1) provides that “[n]o claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” You must move to amend and make that showing before the claim can be pleaded, and financial-worth discovery is unavailable until the court permits it.
• Removal and surcharge — where a fiduciary is in place.
• Lis pendens — recorded at filing, to stop a sale or refinance of contested real property while the case proceeds.

One limitation worth knowing. If the wrongdoer has died, punitive damages are off the table. In Lohr v. Byrd, 522 So. 2d 845 (Fla. 1988), the Florida Supreme Court held that punitive damages may not be awarded against a deceased tortfeasor’s estate, reasoning that “a decedent’s innocent heirs should not be punished when the wrongdoer is unavailable because of death.” Compensatory claims survive; the punitive claim does not.

The Defenses You Will Hear

These are the defenses raised in nearly every Florida undue influence case involving a lifetime transfer. Knowing the answer in advance is worth more than knowing the doctrine.

What they will say	What actually answers it
“It was a gift.”	A gift requires donative intent, delivery and acceptance — and they have to be proved. Who prepared the deed? Who chose the lawyer? Who drove her to the bank? Who was in the room?
“I was on the account to help with her bills.”	That describes a § 655.80 convenience account, in which “all rights, interests, and claims” are “those of the principal only.” It is not a defense — it is an admission.
“The power of attorney let me do it.”	§ 709.2202 requires gift, survivorship and beneficiary-designation authority to be separately enumerated and separately signed or initialed. A non-relative agent generally cannot create an interest in themselves at all. And under § 709.2116(4) the agent carries the burden on a conflicted transaction — by clear and convincing evidence.
“She was sharp as a tack.”	Deed capacity is a higher standard than testamentary capacity — Saliba v. James. Capacity to sign a will is not capacity to sign a deed. But be realistic: capacity is presumed once the deed exists, the challenger carries the burden (Marcinkewicz; Drapp), and “[m]ere mental weakness” is not enough (Parks v. Harden). You need evidence she could not comprehend the transaction — not evidence that she was old and unwell.
“You waited too long.”	For undue influence the clock runs from the termination of the influence (Flanzer), and § 95.031(2)(a) runs a fraud claim from discovery. A civil theft claim may also have been tolled by a criminal proceeding under § 772.17.
“The bank paperwork says survivorship.”	§ 655.79(2) — the presumption yields to proof of fraud or undue influence. And under Beal Bank, a “joint tenancy with right of survivorship” designation is not itself an express disclaimer of tenancy by the entireties.
“The estate has to sue, not you.”	Not for an inter vivos transfer. Parker v. Parker — the estate is not automatically an indispensable party. And where the personal representative is the wrongdoer, the court appoints an administrator ad litem under § 733.308.
“The house has already been sold.”	Depends on void versus voidable. A forged deed conveys nothing even to an innocent purchaser (Wright v. Blocker; Zurstrassen). A deed voidable for fraud may be cut off by a bona fide purchaser — which is why a lis pendens goes on record immediately.

Probate Division or Civil Division?

Both are the circuit court, but they are different dockets with different rules.

Matters concerning administration of the estate — including a will contest and a petition to revoke probate — proceed in the probate division, and contested matters are handled as adversary proceedings under Fla. Prob. R. 5.025, which brings the Rules of Civil Procedure to bear. Under Laushway, the probate court has jurisdiction to entertain a challenge to an inter vivos gift where the estate has a claim in the property.

Claims that belong to individual beneficiaries rather than the estate — and claims for legal relief where a jury is wanted — are often better placed on the civil side. Related actions can frequently be consolidated.

Which division a case belongs in is a strategic decision as much as a jurisdictional one, and it interacts with the jury question.

What Evidence Actually Proves This?

Proving undue influence in Florida is done with documents and timelines, not confessions. Almost nobody admits it — and the records that do the work are more available than families assume once a case is filed.

The financial record

• Bank statements for several years before the transfers — not just the months around them. The pattern before the change is what makes the change look abnormal.
• Signature cards and account agreements. This is the single most important document in an account case. Fla. Stat. § 655.79 turns on what the contract, agreement or signature card actually says, and whether the account was opened as a § 655.80 convenience account.
• Withdrawal slips, checks, wire records and ATM activity — who physically moved the money, and from where.
• New account opening documents, which show who was present and who filled out the form.

The instrument and the people around it

• The deed itself, plus the full chain of title and every mortgage or lien recorded since. This tells you immediately whether the property has moved again.
• The drafting attorney’s file and the preparer’s notes. Who called to set up the appointment? Whose instructions are in the file?
• The notary’s journal and, where the signing was done remotely, the remote online notarization session recording.
• The power of attorney document, read line by line against § 709.2202 for separately initialed authority.
• The prior estate plan — the will, trust or beneficiary form that the transfer displaced.

The medical picture

• Medical records for the period around each transaction, including hospital admissions, medication lists, and any cognitive screening.
• Mini-Mental State Examination or similar testing, if any was done.
• A capacity expert — a geriatrician, neurologist or neuropsychologist — to connect a diagnosis to the ability to understand the specific transaction. This matters because, as Drapp shows, proof that someone was seriously ill is not proof that they lacked capacity.
• Where forgery is suspected, a handwriting expert or forensic document examiner comparing the questioned signature to known exemplars.

The testimony

• Depositions of the beneficiary, the drafting attorney, the notary, the banker who processed the change, and the treating physicians.
• A subpoena duces tecum to the financial institution — the ordinary route to records a family cannot obtain on its own.
• Neutral witnesses: neighbors, the church, the hairdresser, the home health aide. People outside the family are often the most credible observers of isolation and decline.
• Your own timeline, written down now. When did visits get harder? When did the phone stop being answered? When did the new advisor appear? Memory degrades and litigation is slow.

One practical note. If Adult Protective Services investigated, an APS file exists — though Fla. Stat. § 415.107 makes those records confidential, and obtaining them is its own procedural step rather than a phone call.

What Should a Family Do First?

If you suspect a transfer made before death was the product of undue influence or exploitation, these are the first steps — in roughly this order.

1. Stop the bleeding. If the person is still alive and money is still moving, ask about a § 825.1035 exploitation injunction and an emergency temporary guardianship. Freezing assets and lines of credit is available and it is fast.
2. Record a lis pendens if real property is involved and a suit is being filed. A sale or refinance to a bona fide purchaser can end the remedy on a voidable deed.
3. Pull the record title. Every deed in the chain, the recording dates, and every mortgage or lien recorded since. This tells you immediately whether the property has moved again.
4. Get the account documents. Not just statements — the signature cards. Section 655.79 turns on what the account contract, agreement or signature card actually says, and whether the account was set up as a convenience account under § 655.80.
5. Get the power of attorney itself. Read § 709.2202 against it, line by line. Look for whether gift, survivorship, and beneficiary-designation authority were separately enumerated and separately initialed. Check the execution date against October 1, 2011.
6. Preserve the medical records for the period around each transaction — and remember that the question for a deed is a higher capacity standard than for a will.
7. Identify the drafter. Who prepared the deed? Who witnessed and notarized it? A notary journal and the preparer’s file are often decisive.
8. Write down the timeline while memories are fresh. Who had access, who controlled the phone and the mail, when visits stopped, when the estate plan changed.
9. Serve the § 772.11 written demand if civil theft is genuinely in play — before suit, not after.
10. Calendar the deadlines. Especially the elective share dates if there is a surviving spouse, and the notice of administration date if a probate is open.
11. Do not confront the other side first. The most useful admissions — “I was just helping her with the bills” — are made before anyone lawyers up. Once they have counsel, they stop.

What Does a Case Like This Cost, and How Long Does It Take?

How long these cases take

An honest range is eight months to two years for a case that settles, and longer for one that tries. The variables are not mysterious: how many transactions are in dispute, whether real property is involved, how hard the records are to obtain, whether a guardianship or a criminal case is running alongside, and how many family members have separate counsel.

The shape is usually: pleadings and any emergency relief in the first weeks; document discovery and subpoenas to banks over the following several months; depositions and experts after that; then mediation, which in Florida probate and trust litigation is close to universal and is where most of these cases end. Courts commonly require it before trial.

Mediation is not a formality here. These are family disputes with a financial core, and a mediated resolution avoids two things litigants underestimate — the cost of trying a case that turns on expert testimony, and the permanence of what gets said under oath about a parent.

What it costs

It depends on the asset and the posture, and it is a fair question to ask on the first call.

Several of these claims carry fee-shifting, which changes the economics materially: § 415.1111 allows a prevailing party to recover reasonable attorney’s fees and costs; § 772.11 provides for fees to a successful civil theft claimant; and §§ 709.2116 and 709.2117 provide for fees in power-of-attorney proceedings, including reimbursement of fees the agent paid from the principal’s own funds to defend themselves.

Fee-shifting cuts both ways — a defendant may recover fees on an unsupported civil theft claim, and § 415.1111’s fee provision runs to a prevailing party. That is one reason claim selection matters as much as it does.

Contingency and hybrid arrangements are available in some probate and trust litigation matters, subject to the Rules Regulating The Florida Bar. Whether one fits depends on the strength of the evidence and whether there is a recoverable asset at the end of it. We will tell you honestly if the economics do not work.

Frequently Asked Questions

My sister took all of my mom’s money before she died. What can I do?

It depends on how she took it, and the three routes are very different. If she was added to the accounts, the question is whether they were true survivorship accounts under Fla. Stat. § 655.79 or convenience accounts under § 655.80 — in which case she owns none of it. If she used a power of attorney, § 709.2202 probably did not authorize gifts or survivorship changes, and § 709.2116(4) puts the burden on her to justify the transaction by clear and convincing evidence. If she simply took the money, that is conversion, potentially civil theft under § 772.11, and potentially exploitation of a vulnerable adult under § 415.1111. Start with the bank statements and the signature cards.

Can I sue my brother for taking my mother’s money?

Yes, in the right circumstances — and you may not need to open a probate first. Under Parker v. Parker, 185 So. 3d 616 (Fla. 4th DCA 2016), beneficiaries may pursue claims to set aside lifetime transfers without joining the estate. If he was also named personal representative, the court can appoint an administrator ad litem under Fla. Stat. § 733.308 so the estate is represented by someone neutral. The claims available include conversion, breach of fiduciary duty, exploitation of a vulnerable adult, and civil theft.

The caregiver got everything. Is that legal?

It can be, but Florida law scrutinizes it. A paid caregiver who becomes a substantial beneficiary, occupied a confidential relationship with an elderly person, and was active in procuring the transfer is the classic undue-influence pattern. And if the caregiver was acting under a power of attorney, Fla. Stat. § 709.2202 provides that an agent who is not an ancestor, spouse or descendant of the principal generally may not create an interest in themselves at all unless the document expressly allows it.

My mom signed the house over to my sister. Can she get it back?

Possibly — through an action to cancel or set aside the deed on grounds of undue influence, lack of capacity, fraud or forgery. Two things matter immediately. The capacity standard for a deed is higher than for a will, so being competent to sign a will does not settle it. And if the property has since been sold or refinanced, whether a remedy survives depends on whether the deed was void (forgery) or merely voidable (fraud, undue influence). Recording a lis pendens early is what protects the claim.

My sibling had power of attorney and emptied the accounts. What are my options?

This is often the strongest position available. Under Fla. Stat. § 709.2116(4), when an agent’s exercise of authority is challenged as a conflict of interest, the agent bears the burden of proving by clear and convincing evidence that they acted solely in the principal’s interest or with express authority. Section 709.2117 then makes the agent liable to the principal’s successors in interest to restore the property’s value. Get the power of attorney document and read it against § 709.2202 for separately initialed gift and survivorship authority.

My brother won’t show me our mother’s bank statements. Can I make him?

Not by asking, and the bank will not release a deceased customer’s records to you either. Records are obtained by subpoena once an action is filed, or through the personal representative — and where the personal representative is the person who took the money, through an administrator ad litem appointed under Fla. Stat. § 733.308. Being stonewalled is a reason to open a file, not a reason there is no case.

What should I do if I think my sibling is stealing my inheritance?

First, understand what was actually taken. If assets moved before death — a deed, a retitled account, a changed beneficiary — a will contest cannot reach them and you need a separate civil action. If assets were taken after death from the estate, that is a different claim against a personal representative or an intermeddler under Fla. Stat. § 733.309. Second, preserve the record: the deed and chain of title, the bank statements and signature cards, the power of attorney, and the prior estate plan. Third, get the deadline evaluated — most claims run four years, civil theft five, and the accrual date is usually what decides the case. Do not confront your sibling first; the most useful admissions are made before anyone has counsel.

What are the warning signs of undue influence?

The patterns that recur in Florida cases include isolation from family, one person controlling access to the phone, the mail and appointments, a longtime attorney or accountant being replaced by someone the beneficiary chose, an abrupt change to a plan that stood for decades, transfers dated close to a hospitalization or a dementia diagnosis, secrecy about the transaction, and the beneficiary having arranged the lawyer, driven the person to the signing, and kept the original document. A fuller list is above. No single item proves anything; the accumulation is what matters.

My mother has dementia and money is disappearing right now. What can I do today?

Do not wait for a death. Fla. Stat. § 825.1035 provides an injunction for protection against exploitation of a vulnerable adult, available on an ex parte basis, and the court may order freezing any assets of the vulnerable adult and freezing any line of credit. An emergency temporary guardianship may also be appropriate. This is the one scenario on this page where the difference between acting this week and acting next month is usually the money itself.

My brother added himself to my mother’s bank account before she died. Can I do anything?

Often yes. Fla. Stat. § 655.79 presumes a joint account vests in the survivor, but § 655.79(2) allows that presumption to be overcome by proof of fraud or undue influence. And if he was added only to help with bills, that is a convenience account under § 655.80, in which “all rights, interests, and claims” belong to “the principal only” — meaning he owns none of it and the balance belongs to your mother’s estate. Get the signature card.

What is a convenience account, and why does it matter?

Under Fla. Stat. § 655.80, a convenience account is an account in one person’s name on which someone else is designated as an agent who can deposit and withdraw. Section 655.80(2) provides that all rights and interests in the account are “those of the principal only.” The agent has no ownership and no survivorship right. It matters because the most common defense in these cases — “I was only on the account to help her” — describes a convenience account.

Can a pay-on-death (POD) designation be contested in Florida?

Yes. In Keul v. Hodges Boulevard Presbyterian Church, 180 So. 3d 1074 (Fla. 1st DCA 2015), the First District held a POD designation can be challenged on undue influence grounds and that it was error to apply § 655.79 — the joint-account statute — to a POD account. The analysis differs from a joint account because under § 655.82(2) a POD beneficiary has no right to the funds during the account holder’s lifetime.

Can a power of attorney transfer money or property to themselves in Florida?

Rarely lawfully. Under Fla. Stat. § 709.2202, authority to make a gift, to create or change rights of survivorship, or to create or change a beneficiary designation must be separately enumerated in the document and separately signed or initialed by the principal. An agent who is not an ancestor, spouse or descendant generally may not create an interest in themselves at all. Even valid gift authority is capped at the annual federal gift tax exclusion per donee per year. And under § 709.2116(4), a conflicted agent bears the burden of justifying the transaction by clear and convincing evidence.

The house has already been sold. Is it too late?

It depends entirely on the ground. A forged deed is void and conveys nothing, even to an innocent purchaser — Wright v. Blocker, 198 So. 88 (Fla. 1940); Zurstrassen v. Stonier, 786 So. 2d 65 (Fla. 4th DCA 2001). A homestead deed missing the required spousal joinder is also void — Clemons v. Thornton, 993 So. 2d 1054 (Fla. 1st DCA 2008). But a deed procured by undue influence is only voidable, and a bona fide purchaser who paid value without notice can defeat the claim outright — Schlossberg v. Estate of Kaporovsky, 303 So. 3d 982 (Fla. 4th DCA 2020), where a $400,000 buyer kept the condominium because the family had not recorded a lis pendens until a year after the sale. Move immediately.

Does Florida have a transfer-on-death deed for real estate?

No. Florida does not recognize a transfer-on-death or beneficiary deed for real property. What people usually mean is either a completed lifetime deed — which can be challenged now — or an enhanced life estate deed (a “Lady Bird deed”), in which the owner keeps the right to sell, mortgage and revoke during life. A Lady Bird deed passes outside probate and is challenged by an action to cancel the deed, not by a will contest.

What is the “7-year rule” in Florida?

There isn’t one. The seven-year rule people are thinking of is a feature of United Kingdom inheritance tax, under which certain lifetime gifts fall out of the estate after seven years. It has no application in Florida. What actually governs here is the limitations period for the claim you bring — generally four years, five for civil theft — plus, for a surviving spouse, the elective estate’s one-year look-back under Fla. Stat. § 732.2035(9).

How long do I have to challenge a transfer made before death?

Most claims carry four years under Fla. Stat. § 95.11(3); civil theft carries five under § 772.17. The harder question is when the clock started. Fraud-based claims run from discovery under § 95.031(2)(a), subject to a twelve-year absolute repose, and Florida treats undue influence as a species of fraud running from the termination of the influence — Flanzer v. Kaplan, 230 So. 3d 960 (Fla. 2d DCA 2017). A pending criminal case can also suspend the civil theft period. Do not calculate this yourself.

Is it harder to challenge a deed than to challenge a will?

Yes, and the difference is structural. In a will or trust contest, Fla. Stat. § 733.107(2) shifts the burden of proof to the favored beneficiary once the presumption of undue influence arises — they must disprove it. In a deed or account contest, no Florida appellate court has applied that statute. The common-law rule of Ballard v. Ballard and Drapp v. McDaniel governs instead: the challenger bears the burden throughout, and the beneficiary need only give a reasonable explanation — courts have said a “slight” one suffices — after which the presumption vanishes. Same facts, different instrument, materially different case.

Can a beneficiary designation override a will in Florida?

Yes. A beneficiary designation controls the asset it governs, and the will does not reach it. That is exactly why a will contest cannot fix a beneficiary change. The designation itself has to be challenged — or, for a surviving spouse, reached through the elective share.

Does a will override a joint bank account?

Generally no. A joint account with right of survivorship passes to the survivor under Fla. Stat. § 655.79 without regard to what the will says. The route to the money is to rebut the survivorship presumption, to show the account was a § 655.80 convenience account, or — for a surviving spouse — to elect against the estate.

What if my sibling was named personal representative and is the one who took the money?

The court appoints an administrator ad litem under Fla. Stat. § 733.308 to represent the estate in that proceeding, because a personal representative who would have to sue himself is unable to represent the estate. Separately, under Parker v. Parker, beneficiaries may often bring an inter vivos transfer claim directly without the estate.

What if no probate has been opened?

For a genuinely lifetime transfer, you may not need one — Parker v. Parker permits beneficiaries to sue directly. Where estate property needs protection before a personal representative is appointed, the court can appoint a curator under Fla. Prob. R. 5.122, and Fla. Stat. § 733.309 makes anyone “taking, converting, or intermeddling with the property of a decedent” liable to the personal representative or curator.

Can I get the bank records if I’m not the personal representative?

Not simply by asking — banks will not release a deceased customer’s records to a beneficiary without authority. Records are typically obtained by subpoena once an action is filed, or through the personal representative or an administrator ad litem. This is one of the practical reasons to open the file rather than waiting.

Are these cases handled in probate court or civil court?

Either, and it is a strategic choice. Estate administration matters and will contests belong in the probate division as adversary proceedings under Fla. Prob. R. 5.025. Claims belonging to individual beneficiaries, and legal claims where a jury is wanted, often belong on the civil side. Under Laushway v. Onofrio, the probate court can entertain an inter vivos gift challenge where the estate has a claim in the property.

How long does one of these cases take?

Typically eight months to two years for a case that resolves, longer for one that goes to trial. The sequence is pleadings and any emergency relief, then document discovery and bank subpoenas, then depositions and experts, then mediation — which is close to universal in Florida probate and trust litigation and is where most of these cases end.

Will I have to go to mediation?

Almost certainly, and it is usually where the case resolves. Florida courts commonly require mediation before trial in probate and trust matters. It is not a formality — these are family disputes, and a mediated outcome avoids both the cost of trying a case that turns on expert testimony and the permanence of what gets said under oath about a parent.

Can I recover attorney’s fees if I win?

On some claims. Section 415.1111 allows a prevailing party to recover reasonable attorney’s fees and costs; § 772.11 provides fees to a successful civil theft claimant; and §§ 709.2116 and 709.2117 provide for fees in power-of-attorney matters. Undue influence and conversion claims, standing alone, generally do not carry fee-shifting — which is one reason claim selection matters.

Talk to a Florida Probate Litigation Attorney

If assets moved before your family member died — a deed to one child, accounts retitled, a beneficiary changed, money moved by someone holding a power of attorney — the will contest is not your remedy, and the deadlines that matter are already running.

We handle Florida probate litigation for undue influence and elder exploitation claims throughout the state. A first call costs nothing and will tell you three things: whether there is a claim, which claim gives you the best position, and what your actual deadline is.

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Authorities Cited

Florida Statutes. §§ 65.021 · 90.301–90.304 · 95.11(3)(e), (g), (h), (i), (j), (k), (o); 95.11(5)(a) · 95.031(2)(a) · 193.155 · 415.102(8), (28); 415.107; 415.1111 · 655.78 · 655.79 · 655.80 · 655.82 · 709.2114 · 709.2116 · 709.2117 · 709.2202 · 731.105 · 732.702 · 732.703 · 732.2035 · 732.2065 · 732.2075 · 732.2135 · 732.2145 · 733.107(2) · 733.308 · 733.309 · 733.607 · 689.11(1) · 695.01 · 708.08(1) · 768.72 · 772.11 · 772.17 · 812.014 · 825.103(1) · 825.1035.

Rules and constitutional provisions. Fla. Prob. R. 5.025, 5.120, 5.122 · Art. X, § 4(c), Fla. Const.

Federal. 29 U.S.C. § 1104(a)(1)(D) (ERISA) · 42 U.S.C. § 1396p (Medicaid transfer penalty).

Cases. American Red Cross v. Estate of Haynsworth, 708 So. 2d 602 (Fla. 3d DCA 1998) · Agee v. Brown, 73 So. 3d 882 (Fla. 4th DCA 2011) · Ballard v. Ballard, 549 So. 2d 1176 (Fla. 2d DCA 1989) · Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001) · Brown v. Brown, 149 So. 3d 108 (Fla. 1st DCA 2014) · Cerrito v. Kovitch, 457 So. 2d 1021 (Fla. 1984) · Countrywide Home Loans, Inc. v. Kim, 898 So. 2d 250 (Fla. 4th DCA 2005) · Cripe v. Atlantic First National Bank of Daytona Beach, 422 So. 2d 820 (Fla. 1982) · Davis v. Monahan, 832 So. 2d 708 (Fla. 2002) · Drapp v. McDaniel, 306 So. 3d 1280 (Fla. 2d DCA 2020) · Egelhoff v. Egelhoff, 532 U.S. 141 (2001) · Flanzer v. Kaplan, 230 So. 3d 960 (Fla. 2d DCA 2017) · Hack v. Janes, 878 So. 2d 440 (Fla. 5th DCA 2004) · Hannibal v. Navarro, 317 So. 3d 1179 (Fla. 3d DCA 2021) · In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971) · In re Guardianship of Rekasis, 545 So. 2d 471 (Fla. 2d DCA 1989) · Jameson v. Jameson, 387 So. 2d 351 (Fla. 1980) · Jordan v. Jordan, 601 So. 2d 287 (Fla. 3d DCA 1992) · Jordan v. Noll, 423 So. 2d 368 (Fla. 1st DCA 1982) · Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 555 U.S. 285 (2009) · Keul v. Hodges Boulevard Presbyterian Church, 180 So. 3d 1074 (Fla. 1st DCA 2015) · Laushway v. Onofrio, 670 So. 2d 1135 (Fla. 5th DCA 1996) · Leitner v. Leitner, 391 So. 3d 1023 (Fla. 5th DCA 2024) · Lohr v. Byrd, 522 So. 2d 845 (Fla. 1988) · Brown v. Towd Point Mortgage Trust 2017-6, 423 So. 3d 887 (Fla. 4th DCA 2025) · Lyons v. Lyons, 155 So. 3d 1179 (Fla. 4th DCA 2014) · Marcinkewicz v. Quattrocchi, 199 So. 3d 513 (Fla. 3d DCA 2016) · Marucci v. Linder, 177 So. 2d 237 (Fla. 2d DCA 1965) · McCoy v. Love, 382 So. 2d 647 (Fla. 1979) · Mulato v. Mulato, 705 So. 2d 57 (Fla. 4th DCA 1997) · Parker v. Parker, 185 So. 3d 616 (Fla. 4th DCA 2016) · Parks v. Harden, 130 So. 2d 626 (Fla. 2d DCA 1961) · Pitts v. Pastore, 561 So. 2d 297 (Fla. 2d DCA 1990) · Peacock v. Du Bois, 90 Fla. 162, 105 So. 321 (1925) · Saliba v. James, 143 Fla. 404, 196 So. 832 (Fla. 1940) · Saporta v. Saporta, 766 So. 2d 379 (Fla. 3d DCA 2000) · Schilling v. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007) · Schmitz v. Schmitz, 401 So. 3d 416 (Fla. 3d DCA 2024) · Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983) · Spikes v. OneWest Bank FSB, 106 So. 3d 475 (Fla. 4th DCA 2012) · Springer v. Merricks, 397 So. 3d 1044 (Fla. 4th DCA 2024) · Sun Bank/Miami, N.A. v. Hogarth, 536 So. 2d 263 (Fla. 3d DCA 1988) · Swiss v. Flanagan, 329 So. 3d 199 (Fla. 3d DCA 2021) · Tejera v. Lincoln Lending Services, LLC, 271 So. 3d 97 (Fla. 3d DCA 2019) · Whalen v. Prosser, 719 So. 2d 2 (Fla. 2d DCA 1998) · Williamson v. Kirby, 379 So. 2d 693 (Fla. 2d DCA 1980) · Wright v. Blocker, 198 So. 88 (Fla. 1940) · Zurstrassen v. Stonier, 786 So. 2d 65 (Fla. 4th DCA 2001).

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About the author. Jose M. Lorenzo, Jr., Florida Bar No. 107002, is a Florida probate and estate litigation attorney at Lorenzo Law, with offices in Coral Gables and Fort Lauderdale. The firm handles undue influence, elder exploitation, power-of-attorney abuse, and contested lifetime transfers throughout Florida. Contact the firm or call (305) 224-6811.

This article is general information about Florida law and is not legal advice, and reading it does not create an attorney-client relationship. Deadlines in this area are short and fact-dependent; the application of these rules to your situation should be evaluated by a lawyer. Reviewed and updated August 30, 2026 by Jose M. Lorenzo, Jr., Florida Bar No. 107002.