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Shuck v. Bank of America9/19/2003
Lorraine M. Kanavas Shuck ("the widow") appeals the trial court's order dismissing with prejudice her claim against Bank of America, N.A. ("the Bank"), in its capacity as successor trustee of her husband's revocable trust. The widow's claim against the Bank in its capacity as successor trustee was premature because her right to maintain the claim was contingent on events that may or may not occur in the future. Therefore, we affirm the dismissal but reverse the entry with prejudice.
The pertinent facts, as alleged in the widow's first amended complaint, are easily summarized. The widow is the surviving spouse of David L. Shuck ("the decedent"). The Bank is both the personal representative of the decedent's estate and the successor trustee of the decedent's revocable trust. On April 23, 2001, the widow and the decedent executed a prenuptial agreement which provided, in pertinent part, as follows:
The parties agree that the husband shall execute by will or trust provision or by primary beneficiary designation or by addition of the wife as joint holder for the purpose of providing that FIFTY PER CENT (50%) of assets and property, whether real and/or personal wherever located, at husband's death, to the wife, if she is living. The husband shall provide evidence of such execution as requested by the wife.
The parties were married later that day after executing the prenuptial agreement. The decedent died approximately three weeks later. As of the date of his death, the decedent had failed to take the action necessary to make the widow the beneficiary of fifty percent of his assets and property.
An estate was opened for the decedent in Manatee County, Florida, and the Bank was appointed as personal representative of the estate. The widow timely filed a statement of claim in the estate. The Bank objected to the claim, and the widow filed an independent action to enforce the claim. The first count of the widow's first amended complaint was an action for damages for breach of the prenuptial agreement brought against the Bank in its capacity as personal representative of the estate. The second count sought specific performance of the prenuptial agreement against the Bank in its capacities both as personal representative and as successor trustee of the decedent's revocable trust.
The Bank filed an answer to the first count of the widow's first amended complaint raising various affirmative defenses. The Bank also moved to dismiss the second count with prejudice on the ground that the widow did not have an enforceable claim as one of the decedent's creditors. The trial court granted the motion in part by dismissing the second count with prejudice as to the Bank in its capacity as successor trustee of the decedent's revocable trust. The trial court's order allowed the widow to proceed with her claims in both the first and second counts against the Bank in its capacity as personal representative. Thus we are here concerned only with the issue of the Bank's potential liability as successor trustee of the decedent's revocable trust.
At the time of the decedent's death in May 2001, the pertinent statute, section 733.707(3), Florida Statutes (2000), read:
Any portion of a trust with respect to which a decedent who is the grantor has at the decedent's death a right of revocation, as defined in paragraph (e), either alone or in conjunction with any other person, is liable for the expenses of the administration of the decedent's estate and enforceable claims of the decedent's creditors to the extent the decedent's estate is insufficient to pay them as provided in s. 733.607(2).
As the widow has conceded, the trial court's order cor
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