Andre Lee died intestate and was survived by his three children: appellant
Camille Lee, Bruce Lee, and appellee Nicole Lee. The estate was composed of two
principal assets: (i) real property located in Miami, and (ii) settlement proceeds from
a wrongful death claim.
On July 14, 2014, the probate court issued an order appointing Camille Lee
as the personal representative of Andre Lee’s estate and also issued the letters of
administration for the estate. The record reflects that on July 8, 2014, prior to
Camille Lee’s appointment, Nicole Lee executed a document prepared by Camille
Lee’s attorney, styled “Disclaimer of Interest in Property of Estate.” Nicole Lee’s
signature on this disclaimer was witnessed by two persons and notarized. The
disclaimer reads as follows:
I, Nicole Lee, residing at 15711 SW 137 Avenue, Apartment 205, Miami, Florida, 33157, hereby irrevocably disclaim all right, title, and interest, current or prospective in or to the property described below, to which I am a beneficiary from the estate of Andre Lee, the creator of the interest, All Estate assets
I acquired knowledge of the interest in the property on January 6, 2014, and this disclaimer is filed within a reasonable time thereafter.
Subsequently, on December 11, 2014, Camille Lee filed a petition for
discharge seeking distribution of the estate’s assets. On April 9, 2015, Camille Lee
filed the disclaimer with the probate court, and the probate court, on the same day,
entered an order granting the distribution of assets.
Approximately a year later, on May 24, 2016, Nicole Lee filed an objection
to the petition for discharge, arguing that the disclaimer she had signed and delivered
to the personal representative of the estate was deficient. The probate court held a
hearing on August 22, 2017, which continued on November 15, 2017, and ultimately
determined that the disclaimer was both legally insufficient under section
739.104(3) of the Florida Statutes and violative of the statute of frauds because the
disclaimer did not specifically identify the real property being disclaimed. The
probate court then denied Camille Lee’s amended petition for distribution and
discharge as it related to the estate’s real property, and denied Camille Lee’s motion
Camille Lee, as personal representative, timely appealed this order. We have
jurisdiction pursuant to Florida Rule of Appellate Procedure 9.170(b)(15).
II. Analysis1 The Florida legislature has codified the requirements for disclaimer of
property in chapter 739, the Florida Uniform Disclaimer of Property Interests Act.
Pursuant to section 739.104 of the Florida Statues, a person may disclaim any
interest in or power over any property or power of appointment. Unless otherwise
stated, a disclaimer filed under chapter 739 is unconditional. § 739.104(1), Fla. Stat.
In order for a disclaimer to be effective, a disclaimer must: (i) be in writing,
(ii) declare that the writing is a disclaimer, (iii) describe the interest or power
disclaimed, (iv) be signed by the person making the disclaimer, (v) be witnessed and
acknowledged in the manner provided for by deeds of real estate, and (vi) be
delivered in the manner provided in section 739.301 of the Florida Statutes.2 §
739.104(3), Fla. Stat. (2014).
Section 739.601 provides additional requirements if the disclaimer is to be
recorded, thus providing constructive notice to anyone conducting a title search that
might involve real property that has been disclaimed. See § 739.601(1) - (2), Fla.
1 Because we are called on to review a pure question of law (i.e., the probate court’s determination that the subject disclaimer is legally insufficient), our review is de novo. In Re Benitez, 250 So. 3d 153, 155 (Fla. 3d DCA 2018).
2 “In the case of a disclaimer of an interest created under the law of intestate succession . . . [t]he disclaimer must be delivered to the personal representative of the decedent’s estate.” § 739.301(2)(a), Fla. Stat. (2014).
Stat. (2014). This statute provides that a disclaimer “relating to real estate does not
provide constructive notice to all persons unless the disclaimer contains a legal
description of the real estate to which the disclaimer relates and unless the disclaimer
is filed for recording in the office of the clerk of the court in the county . . . where
the real estate is located.” § 739.601(1), Fla. Stat. (2014). The statute further
provides as follows: “An effective disclaimer meeting the requirements of
subsection (1) constitutes constructive notice to all persons from the time of filing.
Failure to record the disclaimer does not affect its validity as between the
disclaimant and persons to whom the property interest or power passes by reason
of the disclaimer.” § 739.601(2), Fla. Stat. (2014) (emphasis added).
Hence, if the disclaimer is to be recorded to provide constructive notice, then
the disclaimer must contain a legal description of the real property. It is clear,
though, from subsection (2) of this statute, that a non-recorded disclaimer is valid as
between the disclaimant and the person to whom the property passes by reason of
the disclaimer, regardless of whether the disclaimer includes a description of the real
property. If the legislature had intended for all disclaimers of real property, whether
recorded or not, to contain a legal description, there would have been no need in
section 739.601(1) to include a requirement of a legal description for disclaimers
that would be recorded.
The instant disclaimer meets each statutory requirement found in section
739.104(3). While the absence of a legal description of the subject property renders
the disclaimer incapable of recordation under section 739.601, the lack of a legal
description does not otherwise affect its validity.
Finally, we note that the trial court summarily determined that the disclaimer
did not meet the requirements of the statute of frauds, section 725.01 of the Florida
Statutes.3 Even if Florida’s statute of frauds were to apply to disclaimers of real
property governed by chapter 739, the subject disclaimer is in writing and signed by
Nicole Lee – i.e., “the party to be charged therewith.” Id. Therefore, the disclaimer
appears to meet the statute’s requirements. III. Conclusion Nicole Lee’s disclaimer foregoing any interest in her father’s estate assets met
the statutory requisites of section 739.104(3); and, even if the statute of frauds is
applicable to such disclaimers, Nicole Lee’s disclaimer appears to meet the statute’s
3 Florida’s statute of frauds provides in pertinent part:
No action shall be brought . . . upon any contract for the sales of lands . . . or of any uncertain interest in or concerning them . . . or upon any agreement that is not to be performed within the space of 1 year from the making thereof . . . unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.
§ 725.01, Fla. Stat. (2014).
requirements that the agreement or promise be in writing and signed by the party
against whom the writing is proffered.
Outcome: We reverse the order on appeal and remand or proceedings consistent with this opinion.