Can a Transfer Before Death Be Challenged? Florida Law 2026

Q: Can You Get a Jury on These Claims?

Sometimes — and it depends on the nature of the claim, not the amount of money at stake. There is no jury in a Florida probate proceeding. Probate is in rem under section 731.105, and the constitutional jury right under Article I, section 22 attaches only where it existed in 1845. A will contest is tried to the judge. The civil action is different. 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, rescission, accounting — are tried to the court. A constructive trust requires a promise, a transfer and reliance, a confidential relationship, and unjust enrichment (Saporta v. Saporta, 766 So. 2d 379, 382 (Fla. 3d DCA 2000), quoting Provence v. Palm Beach Taverns), and it is expressly “a remedy which equity applies.” The governing question is the nature of the claim, not the relief requested. The Florida Supreme Court put it directly in Cerrito v. Kovitch, 457 So. 2d 1021, 1023 (Fla. 1984): “What is essentially an equitable cause of action cannot be transformed into a legal cause of action simply by the use of legal terminology in the complaint.” In

Q: What Should a Family Do First?

Pull the documents before anything else. The recorded deed, the account signature cards and statements, the beneficiary change forms, and the power of attorney itself. The power of attorney is often dispositive on its own — if gift authority was never separately initialed, section 709.2202 does much of the work. Get a date. Every deadline in this area runs from the transaction, not from the funeral, and Davis v. Monahan means late discovery usually will not save the claim. Decide who sues, and where. Personal representative or beneficiary, probate division or civil division, jury or bench — those choices are made at filing and are difficult to unwind.

Yes — and it is a different case from contesting a will. When a parent signs a deed, adds a name to a bank account, or changes a beneficiary in the last months of life, that asset never enters the estate. Contesting the will does nothing about it. Undoing it requires a separate civil action, usually filed in the circuit court’s civil division rather than in the probate case, and it is one of the few inheritance disputes in Florida that can reach a jury.

Most families discover this the wrong way. They spend months fighting over a will that governs an estate with almost nothing left in it, because the house and the accounts moved before death.

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

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Because the will only controls what the decedent still owned when they died.

Section 733.607 gives the personal representative the right to take possession of “the decedent’s property.” The Fourth District read that language precisely in Parker v. Parker, 185 So. 3d 616 (Fla. 4th DCA 2016): the properties at issue “were not part of the decedent’s estate at the time he died because they had already been conveyed inter vivos.” A deed signed in March does not become estate property because the grantor died in November.

The practical consequence is that two separate cases may run at once — a probate administration governing what is left, and a civil action to pull back what was taken. They have different deadlines, different rules, and sometimes different fact-finders.

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

This is the first strategic fork, and getting it wrong costs months.

The personal representative is the natural plaintiff for anything the decedent still owned at death. Section 733.607 directs the personal representative to “take all steps reasonably necessary for the management, protection, and preservation of the estate” and to “maintain an action to recover possession of property or to determine the title to it.”

Individual beneficiaries may sue directly where the asset left the decedent before death. That is the reasoning of Parker: because section 733.607 reaches property remaining in the decedent’s possession at death, a completed lifetime transfer sits outside it, and the estate is not an indispensable party to a suit seeking to set that transfer aside.

When the personal representative is the person who took the asset, Florida’s answer is section 733.308: “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.” That is the clean route, and it is frequently overlooked.

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

Yes. A survivorship designation is not immune from attack; it is simply a transfer that takes effect a different way.

The Florida Supreme Court settled the governing principle in Cripe v. Atlantic First National Bank of Daytona Beach, 422 So. 2d 820 (Fla. 1982), holding at 823 that “the rule of Carpenter is properly applied to inter vivos transfers” — a reference to In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), the decision that established the presumption. The presumption of undue influence most people associate with will contests reaches lifetime transfers too.

Cripe also supplies a discipline that cuts both ways: the court evaluated the transactions one at a time, finding undue influence as to one certificate of deposit but not as to other joint accounts. A plaintiff cannot presume their way through an entire course of dealing in a single stroke, and a defendant cannot save a bad transaction by pointing to good ones.

Payable-on-death designations sit in the same family. In Keul v. Hodges Boulevard Presbyterian Church, 180 So. 3d 1074 (Fla. 1st DCA 2015), the First District treated POD designations as will substitutes and confirmed that Florida’s policy against abuse of fiduciary relationships applies to contracts, inter vivos transfers, and testamentary transfers alike. See also our guide to bank accounts after a death in Florida.

How Do You Set Aside a Deed in Florida?

A deed the decedent signed during their lifetime can be set aside on four grounds: lack of capacity, undue influence, fraud, and forgery. Which one applies matters a great deal, because each carries a different burden of proof, a different deadline, and a different answer to the question of who is allowed to sue. Capacity to sign a deed is also a higher standard than capacity to sign a will, which is why a deed can fall where a will would stand.

Deeds have enough moving parts to deserve their own treatment. Our full guide to how to set aside a deed in Florida covers the capacity standard, the presumption of undue influence and what triggers it, void versus voidable deeds, who has standing to bring the claim, the limitations traps, and what happens when the property has already been sold.

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

Here Florida law is genuinely unsettled, and any page that tells you otherwise is overstating it.

Section 733.107(2) provides that “in any 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.” Read literally, “any transaction or event” is not limited to wills — and subsection (1), which is will-specific, sits beside it as a deliberate contrast.

But the reported decisions applying that burden shift are will contests. Two respected Florida Bar Journal analyses reach opposite framings: one concludes that assuming the statute applies only to will contests “would be incorrect”; the other says it “applies by its terms only to undue influence in wills” while conceding it is “very likely” to reach inter vivos gifts.

The honest statement of Florida law today is that the textual argument is strong, the appellate authority is thin, and the point is worth briefing rather than assuming. A family should know which of those it is walking into.

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

This is the most common fact pattern and, statutorily, the most lopsided — because a self-gift under a boilerplate power of attorney fails on three independent grounds.

First, gift authority requires separate signed enumeration. Under section 709.2202(1)(c) and (2), authority to make a gift, create or change rights of survivorship, or create or change a beneficiary designation must be specifically enumerated and separately signed or initialed by the principal. General “do anything I could do” language does not carry it.

Second, even with enumeration, most agents cannot benefit themselves. Section 709.2202(3) provides that unless the power of attorney says otherwise, an agent who is not an ancestor, spouse, or descendant of the principal “may not exercise authority to create in the agent… an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise.”

Third, generic gift authority is capped. Section 709.2202(4) limits an agent operating under general gift language to the annual federal gift tax exclusion per donee per year.

Behind all of that sits section 709.2114: “An agent is a fiduciary,” who must act loyally “for the sole benefit of the principal,” avoid conflicts, and — a provision families rarely know exists — “attempt to preserve the principal’s estate plan.”

The remedy is express. Section 709.2117 makes an agent who violates the Act liable to the principal “or the principal’s successors in interest” for the amount required to “restore the value of the principal’s property to what it would have been had the violation not occurred,” plus reimbursement of the principal’s funds spent defending the agent. That is a restoration measure running expressly to the estate after death, and it is badly under-used. See our Florida power of attorney guide.

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

Because the statutory remedies are dramatically better than common-law damages.

Florida defines a vulnerable adult in section 415.102(28) as an adult whose ability to provide for their own care or protection is impaired by disability, dysfunction, brain damage, “or the infirmities of aging.” Exploitation under section 415.102(8) has two independent routes: someone who stands in a position of trust and, by deception or intimidation, takes the adult’s assets — or someone who “knows or should know that the vulnerable adult lacks the capacity to consent” and takes them anyway. The second route requires no deception at all.

Section 415.1111 then gives a civil cause of action for “actual and punitive damages,” and says expressly that it may be brought “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.” Attorney’s fees are permissive — a prevailing party “may be entitled” to them, not shall.

There is also an emergency tool. Section 825.1035 allows an injunction for protection against exploitation of a vulnerable adult, and the available relief includes freezing assets and ordering their return. Its hard limit is subsection (15): “Nothing in this section may affect title to real property.” It will not undo a deed. It is a preservation device that runs alongside the civil action, never a substitute for it.

What Is Civil Theft, and Is It Worth Pleading?

Section 772.11 is the highest-value and highest-risk claim in this area. The upside is real: treble damages, plus “reasonable attorney’s fees and court costs in the trial and appellate courts.”

The requirements are exacting. The plaintiff must prove the claim “by clear and convincing evidence” — the statute says so in its own text, a higher bar than the greater-weight standard governing undue influence. Before filing, the claimant “must make a written demand for $200 or the treble damage amount,” and a defendant who complies within 30 days earns a written release. Punitive damages are unavailable under the section. And a defendant who defeats a claim “without substantial fact or legal support” recovers their own fees — the exposure runs both directions.

Two points most published summaries get wrong. First, the statute is no longer theft-only: chapter 2014-200 added section 825.103(1) — criminal exploitation of an elderly person or disabled adult — as a predicate, and retitled the section “Civil remedy for theft or exploitation.” A qualifying elder-exploitation pattern reaches treble damages directly, with no conviction required.

Second, the limitations period is five years, not four. Section 772.17 provides, “notwithstanding any other provision of law,” that an action under the chapter may be commenced within five years, and suspends the clock during a parallel criminal prosecution and for two years after it ends. The four-year figure quoted on most websites comes from section 95.11 and is displaced here.

Section 772.11(4) closes the loop for estates: “The death of an elderly or disabled person does not cause the court to lose jurisdiction of any claim for relief for theft or exploitation.”

How Long Do You Have to Bring These Claims?

Shorter than families expect, and the rule that usually surprises them is the one about discovery.

Most of these claims carry a four-year period under section 95.11(3): conversion under (3)(g), fraud-based claims under (3)(i), rescission under (3)(k), and breach of fiduciary duty under the catch-all in (3)(o). Civil theft is the exception at five years. One trap for anyone reading older material: the 2023 tort reform re-lettered section 95.11(3). Fraud used to be (3)(j) and is now (3)(i) — any source still citing (3)(j) is working from a stale version.

The hard part is Davis v. Monahan, 832 So. 2d 708 (Fla. 2002). The Florida Supreme Court considered claims for breach of fiduciary duty, civil theft, conspiracy, conversion, and unjust enrichment arising from the wrongful taking of a person’s assets, and held that “the Florida statutory scheme does not allow for the delayed discovery rule in this particular type of case.” The clock generally runs from when the last element of the claim occurred — not from when the family found out. Section 95.031(2) preserves delayed discovery for fraud specifically, subject to a twelve-year absolute repose.

That combination is why these cases are lost before they are filed. A deed recorded eight years before death may be beyond reach no matter how clear the undue influence was.

Can You Get a Jury on These Claims?

Sometimes — and it depends on the nature of the claim, not the amount of money at stake.

There is no jury in a Florida probate proceeding. Probate is in rem under section 731.105, and the constitutional jury right under Article I, section 22 attaches only where it existed in 1845. A will contest is tried to the judge.

The civil action is different. 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, rescission, accounting — are tried to the court. A constructive trust requires a promise, a transfer and reliance, a confidential relationship, and unjust enrichment (Saporta v. Saporta, 766 So. 2d 379, 382 (Fla. 3d DCA 2000), quoting Provence v. Palm Beach Taverns), and it is expressly “a remedy which equity applies.”

The governing question is the nature of the claim, not the relief requested. The Florida Supreme Court put it directly in Cerrito v. Kovitch, 457 So. 2d 1021, 1023 (Fla. 1984): “What is essentially an equitable cause of action cannot be transformed into a legal cause of action simply by the use of legal terminology in the complaint.” In the same passage the Court added that “not all claims for money are legal actions triable by jury as a matter of right.”

That is the trap worth understanding. Asking for money does not create a jury right. A claim sounding in equity stays in equity even when the relief is a dollar figure. Conversion and civil theft are legal claims and carry a jury. A claim framed as a fiduciary’s breach, or as a request for a constructive trust, generally does not.

Pleading choices made in the first thirty days therefore decide who hears the case years later, and they are difficult to unwind. Our Florida probate litigation page covers how these claims are structured.

What Should a Family Do First?

Pull the documents before anything else. The recorded deed, the account signature cards and statements, the beneficiary change forms, and the power of attorney itself. The power of attorney is often dispositive on its own — if gift authority was never separately initialed, section 709.2202 does much of the work.

Get a date. Every deadline in this area runs from the transaction, not from the funeral, and Davis v. Monahan means late discovery usually will not save the claim.

Decide who sues, and where. Personal representative or beneficiary, probate division or civil division, jury or bench — those choices are made at filing and are difficult to unwind.

Talk to a Florida Probate Litigation Attorney

Lorenzo Law represents families in contested probate, will disputes, and civil actions to recover assets transferred before death. If a deed, an account, or a beneficiary designation changed in the months before someone died, the clock is already running.

Call (305) 224-6811 or use the contact form to arrange a consultation.

Jose M. Lorenzo, Jr. is a Florida attorney, Florida Bar No. 107002. This page is general legal information about Florida law, not legal advice about any particular matter.

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