M.R. v. A.B.C. (739 So. 2d 118, 1999)

COPE, J.

The plaintiffs in a paternity action filed against A.B.C. appeal the denial of their motion to substitute the personal representative of the estate of A.B.C. as the defendant in that action. We reverse.

M.R. filed the paternity action in 1994. See M.R. v. A.B.C., 683 So.2d 629 (Fla. 3d DCA 1996). In January 1997 the parties entered into a settlement agreement which included an indemnity provision. After the settlement, the trial court reserved jurisdiction to enforce its provisions. In November 1997 A.B.C. died and a Suggestion of Death was filed in the action by his counsel.

In compliance with Florida Rule of Civil Procedure 1.260, M.R. filed a timely motion to substitute the personal representative in place of A.B.C. The personal representative opposed the motion arguing that M.R. was required to file a claim in the probate division under section 733.702, Florida Statute (1997), before the substitution could occur. The trial court agreed with those arguments and denied M.R.’s motion, even though the time for filing a claim in the probate division had not expired. In addition, the trial court ruled that if M.R. did comply with section 733.702 and her claim was rejected by the personal representative, M.R.’s remedy was to then file a separate action.

Rule 1.260 does not require the filing of a claim in the probate division as a condition precedent to the substitution of the personal representative in place of the decedent in a pending lawsuit. No case so holds. “There are no specific requirements for the content of the motion, other than that it seek an order substituting a ‘proper’ party in place of the decedent.” Bruce J. Berman, Florida Civil Procedure (t-¶ 260.