May v. Illinois National Case Analysis

In May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2000), the Florida Supreme Court held that section 733.710, Florida Statutes, is a jurisdictional statute of nonclaim. Two years after a person dies, the estate, the personal representative, and the beneficiaries are no longer liable for a claim that was never filed in the probate proceeding. No court can extend that deadline.

The companion statute, section 733.702, sets the shorter claim deadlines that run from the notice to creditors. The court held that section 733.702 is a statute of limitations: it bars a late claim even when no one objects, but the probate court may extend it for fraud, estoppel, or insufficient notice. No extension on any ground can reach the two-year bar of section 733.710.

A Fatal Accident and a Late Statement of Claim

Oscar Bradley died on September 21, 1991, in a collision between the car he was driving and a van driven by Donald Prockup, whose wife Inez was a passenger. Mrs. Prockup died from her injuries, and Mr. Prockup was injured. Bradley’s liability policy with Illinois National Insurance Company had limits of $10,000 per person, and the car’s owner, his niece, carried a separate policy with the same limits.

Prockup sued Bradley’s estate and the owner for wrongful death and his own injuries in May 1992. Five days later he filed a verified petition asking the probate court to appoint David May as administrator ad litem to defend the estate. The petition described his accident claim in detail. His March 1993 counter-petition for administration stated that he was the estate’s creditor by virtue of the wrongful death claim.

The probate court instead appointed two of Bradley’s relatives as co-personal representatives, and they first published the notice of administration in September 1993. Prockup did not file a document titled “Statement of Claim” until December 27, 1993—more than three months after first publication and more than two years after Bradley’s death. The co-personal representatives honored the claim anyway, paid him $2,648.44 under the distribution plan, and were discharged in 1995.

By then the wrongful death case had produced a judgment of more than $1.1 million against the estate, and the owner’s insurer had paid its $20,000 limits for a release that excluded the estate and Illinois National. May, as administrator ad litem, sued Illinois National for bad faith. The insurer removed the case to federal court after paying $21,348.90, the policy limits plus post-judgment interest, into the court registry.

Illinois National argued that the late claim meant the estate owed nothing beyond policy limits, so no bad faith action could stand. The district court agreed, and the Eleventh Circuit certified to the Florida Supreme Court the question whether the two statutes are statutes of nonclaim or statutes of limitations that are waived if not pleaded.

What Section 733.702 Requires

Section 733.702 sets the basic time frame for filing claims against a Florida estate. A claim that arose before death is unenforceable against the estate, the personal representative, and the beneficiaries unless it is filed in the probate proceeding on time. The basic deadline is three months after the notice to creditors is first published. A creditor who must be served with the notice has until thirty days after service, if that is later. A claim that misses the deadline is barred even though the personal representative has recognized it with a partial payment.

The court had held in Barnett Bank of Palm Beach County v. Estate of Read, 493 So. 2d 447 (Fla. 1986), that this period was an ordinary statute of limitations. An estate that never objected to a late claim waived the defense. The Legislature answered in 1988 with language barring a late claim even when no objection is filed. The 1989 amendment added insufficient notice as a third extension ground, alongside fraud and estoppel, after the United States Supreme Court required actual notice to reasonably ascertainable creditors.

The May court read the amended statute to keep both features. A late claim is barred in probate even if no one objects, so the timeliness defense cannot be waived there. But because the court can extend the period for fraud, estoppel, or insufficient notice of the claims period, section 733.702 remains a statute of limitations rather than a true statute of nonclaim.

Outside the probate proceeding, the deadline works like any other limitations defense, and an estate that fails to plead it in a separate lawsuit waives it. The waiver wins the creditor little, because under section 733.706 no execution may issue against estate property without probate court approval, and a judgment holder must file a probate claim like any other creditor. The only route to payment on a late claim is a probate extension.

Why Section 733.710 Cannot Be Extended

Section 733.710 says that two years after a person’s death, the estate, the personal representative, and the beneficiaries are no longer liable for any claim against the decedent, even if no estate was ever opened. The statute contains its own two exceptions. The first covers a creditor who filed a claim within the two years that has not yet been paid or resolved. The second preserves the lien of a duly recorded mortgage or security interest, a possessory lien on the decedent’s personal property, and the right to foreclose.

The district courts of appeal had split over the statute. The Third District treated it as another statute of limitations, one that fraud could estop an estate from raising. The Fourth District disagreed in Comerica Bank & Trust, F.S.B. v. SDI Operating Partners, L.P., 673 So. 2d 163 (Fla. 4th DCA 1996), calling the statute an absolute bar akin to a statute of repose.

The Florida Supreme Court adopted the Comerica reading. Section 733.702 opens with the phrase “[i]f not barred by s. 733.710,” which makes the two-year period control over the shorter deadlines, and section 733.702(5) says nothing in that section extends it. No provision anywhere in the probate code allows an extension.

The two-year bar is therefore self-executing: it does not depend on an objection, and a claimant cannot avoid it by showing fraud, estoppel, or insufficient notice—the very grounds that reopen the shorter deadlines. The court held that section 733.710 is a jurisdictional statute of nonclaim that automatically bars untimely claims and cannot be waived or extended in the probate proceedings.

The opinion left one narrow opening. An estate can still waive the two-year defense in a separate lawsuit outside probate by failing to plead it. Even then, the judgment is not collectible from estate assets, because the creditor needed a claim filed in the probate proceeding within two years and no court has the power to allow one later.

The Filings That Counted as a Claim

The Florida Supreme Court concluded that Prockup’s early probate filings counted as claims, a different reading of Florida law than the federal courts had suggested. His 1992 petition for an administrator ad litem was verified and stated the accident claim in the same words as the later formal statement. Both filings were made in the probate proceeding itself, under the file number the estate kept throughout.

Florida law requires a written statement of the claim filed in the probate proceeding, and the probate rules let a court permit amendment of a claim that is defective in form. Both filings substantially satisfied those requirements, and the law “should not elevate form over substance.”

That conclusion carried the two-year bar. Both documents were filed within two years of Bradley’s death, so section 733.710 never extinguished the claim.

The three-month deadline was another matter. The statute the court construed required a claim to be filed after the notice was first published. The Legislature had deliberately chosen that word, substituting “after” for “from” in 1988. Both of Prockup’s filings preceded the September 1993 publication. His only filing after publication came too late, and the court was aware of no request to extend the time. The claim therefore failed section 733.702 even though it survived section 733.710.

Applying that answer in May v. Illinois National Insurance Co., 245 F.3d 1281 (11th Cir. 2001), the Eleventh Circuit affirmed the summary judgment for Illinois National. Chief Justice Wells, joined by Justice Harding, would have answered the certified question without applying the statutes to the facts, which he considered beyond the court’s jurisdiction on certification. The Legislature has since reworded the deadline, which now runs “on or before” the later of the two dates, and the published notice is now called the notice to creditors rather than the notice of administration.

How Later Decisions Applied the Two-Year Bar

The Florida Supreme Court refined the probate claim deadlines in Jones v. Golden, 176 So. 3d 242 (Fla. 2015). A known or reasonably ascertainable creditor who was never served the notice may file within two years of death—the short deadlines never start, and only section 733.710 ends the claim.

In Tsuji v. Fleet, 366 So. 3d 1020 (Fla. 2023), the court closed an opening that May itself had described. The May opinion repeated, as settled law, that a creditor who files no timely claim may still recover up to the limits of the decedent’s casualty insurance. Tsuji held those statements were dicta without precedential force, disapproved the decision they rested on, and ruled that section 733.710 bars a negligence suit filed more than two years after death even when the plaintiff seeks only the insurance limits.

The insurance exception lives in section 733.702, and nothing in section 733.710 mentions casualty insurance. Tsuji also held that the two-year bar operates as an adjudication on the merits, so an employer sued only vicariously for a deceased employee’s negligence is exonerated along with the estate.

In Roe v. NPC International, Inc., No. 5D2024-2323 (Fla. 5th DCA Jan. 30, 2026), the Fifth District held that a plaintiff’s first voluntary dismissal of an employee is without prejudice and is not an adjudication on the merits. Tsuji therefore did not exonerate the employer, whose employee was still subject to liability when the plaintiff timely filed suit.

What the Two-Year Bar Means for Creditors

A creditor of someone who has died must file a claim in the probate proceeding, and two years after the death an unfiled claim is extinguished. The period runs from death, not from the date an estate is opened, so a creditor who waits for an estate to open loses that time. A creditor facing an unopened estate can petition for administration. Under May, a verified probate filing that states the claim in substance counted as a claim for the two-year bar, though it did not satisfy the shorter deadline that runs from publication.

In the probate proceeding, nothing about the bar depends on the estate’s conduct. A personal representative who promises payment, pays part of the claim, or never objects does not revive a late claim, and after Tsuji the two-year deadline reaches even a suit limited to the decedent’s casualty insurance. Only the two statutory exceptions survive it, so a mortgage or other recorded lien on the decedent’s property remains enforceable, and a claim filed within the two years stays alive until it is paid or disposed of.

Beneficiaries hold the other side of the same rule: two years after death, they take estate assets free of any claim that was never filed. Florida probate is the court process where creditor claims are presented and paid before assets are distributed. A judgment against someone who later dies is collectible only by filing a probate claim, the same rule that shapes Florida judgment collection case law. Among the Florida asset protection case law decisions, May marks where a creditor’s rights against a Florida estate end.