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Shuck v. Bank of America9/19/2003
m Hosps., Inc., 780 So. 2d 170, 171-72 (Fla. 2d DCA 2001); Wright v. Life Ins. Co. of Ga., 762 So. 2d 992, 993 (Fla. 4th DCA 2000); Liberty Mut. Ins. Co. v. Farm, Inc., 754 So. 2d 865, 866 (Fla. 3d DCA 2000); Dimick-Russell v. Frankel, 734 So. 2d 486 (Fla. 5th DCA 1999). The dismissal without prejudice of a prematurely filed action eliminates confusion about the effect of the trial court's order and helps avoid unnecessary appeals. See Smith v. St. Vil, 714 So. 2d 603, 605 (Fla. 4th DCA 1998).
In this case, the widow's claim against the decedent's revocable trust is contingent upon her establishing an enforceable claim against the decedent's estate. The outcome of the widow's action against the estate is uncertain. The mere passage of time will not cure the premature element of the widow's claim against the trust. Therefore, abatement is not an appropriate disposition of the premature action, and a dismissal without prejudice is required. A dismissal without prejudice will make clear that the widow's ability to seek relief against the decedent's revocable trust under section 733.707 for such enforceable claims against the decedent's estate as she may now have or hereafter acquire will not be precluded by the effect of a prior dismissal. Therefore, we affirm the trial court's order dismissing count two of the widow's amended complaint against the Bank in its capacity as successor trustee of the decedent's revocable trust, but we remand for the entry of an order providing that such dismissal is without prejudice.
Affirmed in part, reversed in part, and remanded with directions.
CASANUEVA and CANADY, JJ., Concur.
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