The recent decision by the Fourth District Court of Appeal in Parker v. Parker, 185 So. 3d 616 (Fla. 4th DCA 2016), highlights the uncertainty in Florida law over the proper party to bring a cause of action for the return of assets transferred by the decedent prior to the decedent's death or inter vivos transfers. The Parker court follows a long line of cases that have allowed the decedent's children and family members, individually, to bring claims to overturn pre-death transfers by the decedent. However, the Parker decision runs contrary to many cases with similar facts and causes of action that have relied on F.S. [section]733.607 and [section]733.608 (2016) to hold that the personal representative is the proper party to retrieve assets or pursue claims that would benefit the estate.
The Parker Facts and Opinion
The Parker case involved real property owned by the decedent, Joe Parker, Sr. After being advised that he had a terminal illness, the decedent and his wife, Joan, transferred seven pieces of real property to one of their sons, Sean Parker, and Sean's recently formed business, Parkerquest, LLC. (1) The decedent had one other son with his wife Joan, Kevin Parker. (2) Seven months after the decedent's death, the decedent's children from prior relationships sued their half-brothers, Sean and Kevin, their stepmother Joan, and Parkerquest, LLC. (3) The plaintiffs alleged tortious interference with inheritance, undue influence, unjust enrichment, accounting, constructive trust, and replevin. They ultimately sought to set aside the warranty deeds conveying real properties to Sean and Parkerquest, LLC. (4)
The defendants filed a motion to dismiss for failure to join the estate as a party to the action and alleged that, pursuant to [section]733.607, the estate was an indispensable party and the plaintiffs lacked standing. (5) The trial court judge agreed and granted the defendant's motion to dismiss with prejudice for failure to join indispensable parties. (6) Between the trial court's ruling and the appeal, the plaintiffs filed pleadings to open an estate, but a personal representative had not been appointed. (7)
The Fourth District, relying on established caselaw and the Florida Probate Code, reversed the trial court's decision. The court first looked to [section]733.607, which states, in pertinent part, that "every personal representative has a right to, and shall take possession or control of, the decedent's property...." Because the properties at issue had been transferred prior to the decedent's death, they were not part of the decedent's assets and as a result, the court did not apply [section]733.607. (8) The court then cited several Florida cases that have "repeatedly permitted a decedent's children to pursue claims to set aside inter vivos conveyances based upon allegations of undue influence without requiring that the decedent's estate be joined as a party to the suit." (9) The court noted that the defendants had provided no authority to support their position that [section]733.607 makes the estate an indispensable party to an action to set aside inter vivos conveyances. (10) Ultimately, the Fourth District concluded that the decedent's estate was not so essential to the suit that a final decision could not be rendered without joining the estate as a party. (11)
The Parker Authority
A closer look at the cases that the Fourth District relied on to make its decision provides some insight into the Parker court's holding. In Parker, the Fourth District referenced eight different cases (12) to support its position that Florida courts repeatedly allow parties other than the personal representative to bring these causes of action. For example, in Pratt v. Carns, 80 Fla. 243 (Fla. 1920), the decedent's sons and heirs brought a claim against their sister to set aside a deed based on undue influence. Similarly, in Rowland v. McCall, 118 So. 2d 846 (Fla. 2d DCA 1960), the decedent's sister brought a claim against her niece to void a deed executed during the decedent's lifetime based on fraud, duress, or undue influence.
While the cases cited by Parker did permit various family members to bring causes of action for the return of assets transferred during the decedent's lifetime based on undue influence, lack of capacity, tortious interference, (13) or replevin, none of the eight cases specifically addressed standing or the indispensable parties to the causes of action. The Parker court appeared to rely on the fact that the named plaintiffs in these prior cases were parties other than the personal representative. None of the cases cited by the Fourth District in Parker decision actually addressed the indispensable nature of the estate to the lawsuit.
Further, a personal representative's responsibility to marshal and preserve estate assets under [section]733.607 was not addressed by any of the decisions relied on by the Fourth District in Parker. Instead, those cases all focused on the merits of the cause of action and whether the parties had sufficiently proven their cases. The Parker court is the first Florida decision to hold that a personal representative is not an indispensable party to an action for the return of assets transferred by the decedent during his or her lifetime.
Florida Courts' Interpretations of F.S. [section]733.607
The Fourth District, in Parker, made the threshold determination that since the property was transferred by the decedent during his lifetime and was not in the decedent's name at the moment of death, the property was not the "decedent's property" under...