Earlier this month in Brown v. Brown, 2015 Fla. App. LEXIS 10748 (Fla. 4th DCA 2015), the Fourth DCA held that a circuit court lacks in rem jurisdiction to direct a personal representative in an estate proceeding to divide and distribute a decedent’s real estate in another state. Rather, to partition out of state real property, a personal representative should initiate an ancillary action in the other state. See, Section 64.022, Fla. Stat.
In the subject case, an estate beneficiary, Robert Paul Brown, Jr. (“Appellant”), appealed from the circuit court’s final order directing the personal representative to divide and distribute the decedent’s real estate in Georgia and real estate in Florida and other miscellaneous inventory assets of the Estate amongst several estate beneficiaries. The Appellant primarily argued that the circuit court lacked jurisdiction to direct the personal representative to distribute the decedent’s Georgia real estate.
The Fourth DCA agreed and reversed that portion of the order on appeal. See, Polkowski v. Polkowski, 854 So. 2d 286 (Fla. 4th DCA 2003) (“Like lines in the sand, state boundaries determine a court’s jurisdiction over real property,” and thus the court lacked in rem jurisdiction to order the partition and sale of foreign property); Pawlik v. Pawlik, 545 So. 2d 506, 507 (Fla. 2d DCA 1989) (“In no event could the [circuit] court effect a partition of lands outside this state.”); In re Roberg’s Estate, 396 So. 2d 235, 235-36 (Fla. 2d DCA 1981) (“When a testator executes a will devising lands in two or more states, the courts in each state construe it as to the lands located therein as if devised by separate wills.”)
“To partition property from outside this state, the personal representative needs to open an ancillary action in Georgia. See § 64.022, Fla. Stat. (2012) (a suit for partition ‘shall be brought in any county where the lands or any part thereof lie which are the subject matter of the action.’).”
Except as indicated, the Fourth DCA affirmed the balance of the order on appeal. The case was remanded for proceedings consistent with the Fourth DCA’s opinion.
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