Florida Legal Glossary

Estate planning

The documents and ideas behind a Florida estate plan, from the will itself to the homestead rules that surprise people.

Will (last will and testament)

A written document that says who receives the property in your name at death, names a personal representative to handle the estate, and can nominate a guardian for your minor children. Under section 732.502, Florida Statutes, a will must be in writing, signed by you at the end, in the presence of two witnesses who also sign in your presence and in the presence of each other. A will does not avoid probate. It tells the probate court what to do. See estate planning.

Revocable living trust

A trust you create during your lifetime, can amend or revoke at any time, and usually manage yourself as the initial trustee. Property titled in the trust passes to your beneficiaries under the trust's terms, without probate. Because the trust does the work of a will at death, section 736.0403, Florida Statutes, requires a Florida resident to sign the trust with the same formalities as a will for those provisions to be valid. See revocable living trusts.

Pour-over will

The will that accompanies a revocable trust. It "pours" anything still in your individual name at death into the trust, so one set of instructions governs everything, and it is where the guardian for minor children is named. Whatever passes through a pour-over will still goes through probate first, which is why funding the trust during life matters.

Trust funding

Retitling accounts and real estate into the name of the trust, and updating beneficiary designations to match the plan, so that the trust actually controls the assets. A signed but unfunded trust avoids nothing. We walk through this on our trust funding checklist and explain why it is the most common reason estate plans fail.

Trustee and successor trustee

The person or institution that holds legal title to trust property and manages it according to the trust's terms. With a revocable living trust you are normally the first trustee. The successor trustee named in the document steps in if you become incapacitated and again at your death, without a court appointment.

Probate

The court-supervised process for proving a will (if there is one), appointing a personal representative, paying valid debts, and distributing the assets a person owned in their individual name without a beneficiary designation or co-owner. Florida probate is governed by the Florida Probate Code, chapters 731 through 735 of the Florida Statutes. Assets held in a funded trust, jointly owned with survivorship, or payable to a named beneficiary do not go through it.

Personal representative

Florida's name for the executor, the person the probate court appoints to administer an estate. A person who does not live in Florida can serve only if they are related to the decedent in one of the ways listed in section 733.304, Florida Statutes (for example a child, parent, sibling, spouse, or other lineal relative). That rule catches people who name an out-of-state friend.

Intestate (dying without a will)

When someone dies without a valid will, Florida's intestate succession statutes decide who inherits. Under section 732.102, Florida Statutes, a surviving spouse receives the entire intestate estate if the decedent had no descendants, or if every descendant is also the spouse's descendant and the spouse has no other descendants. Otherwise the spouse receives one-half and the descendants share the rest.

Durable power of attorney

A document that authorizes an agent to handle financial and legal matters for you. "Durable" means it keeps working if you become incapacitated, which under section 709.2104, Florida Statutes, requires the document to say, in substance, that it is not terminated by your later incapacity. Under section 709.2105, a Florida power of attorney must be signed in the presence of two witnesses and acknowledged before a notary.

Health care surrogate

A person you designate in writing to make medical decisions when you cannot make them yourself. Under section 765.202, Florida Statutes, the designation must be signed in the presence of two adult witnesses, the surrogate cannot serve as a witness, and at least one witness may not be your spouse or a blood relative. You can also make the surrogate's authority effective immediately rather than waiting for a finding of incapacity.

Living will

A written declaration under section 765.302, Florida Statutes, stating whether you want life-prolonging procedures provided, withheld, or withdrawn if you have a terminal condition, an end-stage condition, or are in a persistent vegetative state. It is signed in front of two witnesses, one of whom cannot be your spouse or a blood relative. Despite the name, it has nothing to do with a living trust or a last will.

Preneed guardian for a minor

The person parents name in advance to raise their minor children if both parents die or become incapacitated. Under section 744.3046, Florida Statutes, both parents (or the surviving parent) make the nomination in a written declaration signed in the presence of two attesting witnesses present at the same time, and the declaration is filed with the clerk of the court. See guardians for minor children.

Guardianship of a minor's property

A minor cannot manage an inheritance directly. Under section 744.301(2), Florida Statutes, a parent as natural guardian can receive and manage property or settlement money for a child without a court appointment only while the total does not exceed $15,000. Above that, a court-supervised guardianship of the property is generally required. Leaving assets to a trust for the child's benefit, rather than to the child outright, is how a plan avoids that.

Homestead

In Florida, your primary residence gets special treatment under Article X, section 4 of the Florida Constitution. It is protected from forced sale by most creditors, and section 732.4015, Florida Statutes, restricts how it can be left at death when you are survived by a spouse or a minor child. The property tax exemption and assessment cap that share the name "homestead" are a separate, tax-side concept.

Elective share

A surviving spouse's right to take 30 percent of the "elective estate" instead of whatever the will or trust leaves them, under section 732.2065, Florida Statutes. The elective estate reaches more than the probate estate, including many trust and beneficiary-designated assets. The right can be waived in a prenuptial or postnuptial agreement that meets section 732.702, which requires the waiver to be signed in the presence of two witnesses.

Beneficiary designation

The form on file with a life insurance company, retirement plan, or bank that names who receives the account at death. These assets pass by contract, outside your will and usually outside your trust. A designation that contradicts the plan, or names an ex-spouse or a minor child directly, is one of the most common and most expensive estate planning mistakes.

Construction liens

Florida's Construction Lien Law, Part I of chapter 713, runs on notices and deadlines. These are the terms you will see on every one of them.

Construction lien

A claim against real property, created by Part I of chapter 713, Florida Statutes, in favor of a contractor, subcontractor, supplier, or other lienor who improved the property and was not paid. It is enforced by a lawsuit to foreclose the lien. Nearly every right under the lien law depends on a notice served or recorded on time. See construction liens.

Lienor

Anyone who has, or may have, a lien under the Construction Lien Law. section 713.01, Florida Statutes, defines the term to include contractors, subcontractors, sub-subcontractors, laborers, materialmen, and the design professionals covered by section 713.03, plus their successors in interest.

Privity

A direct contract relationship. A lienor "in privity" with the owner has a contract with the owner; a subcontractor or supplier hired by someone else is "not in privity." The distinction decides whether you must serve a Notice to Owner and, on a bonded job, a notice to the contractor.

Notice to Owner (NTO)

The written notice a lienor without a direct contract with the owner must serve to preserve lien rights. Under section 713.06, Florida Statutes, it must be served before beginning, or no later than 45 days after beginning, to furnish labor, services, or materials, and in any event before the owner disburses final payment after receiving the contractor's final payment affidavit. Laborers are exempt. Read the 45-day rule or run the deadline calculator.

Notice of Commencement

The document the owner records with the county before improvements begin, under section 713.13, Florida Statutes. It identifies the property, the owner, the contractor, any surety and payment bond, and any lender, and it tells lienors where to send notices. It is void if work does not begin within 90 days of recording, and unless it says otherwise it stops being effective one year after recording.

Claim of lien

The sworn document a lienor records in the county's official records to perfect a construction lien. Under section 713.08, Florida Statutes, it may be recorded during the work but no later than 90 days after the lienor's final furnishing, and a copy must be served on the owner before recording or within 15 days after.

Final furnishing

The last date the lienor furnished labor, services, or materials to the project, as defined in section 713.01, Florida Statutes. It is measured by the lienor's own last work, not by the certificate of occupancy or project completion, and warranty or punch-list corrections do not extend it. The 90-day claim of lien deadline and the 90-day notice of nonpayment deadline both run from it.

Contractor's final payment affidavit

The sworn statement a contractor in privity with the owner must deliver to the owner, listing any unpaid lienors, before suing to enforce its own lien. Under section 713.06, Florida Statutes, it must be delivered at least 5 days before the lawsuit is filed. The owner's disbursement of final payment after receiving it also closes the window for late Notices to Owner.

Lien duration and notice of contest

Under section 713.22, Florida Statutes, a recorded construction lien lasts one year unless a foreclosure action is filed within that year. An owner can shorten that by recording a notice of contest of lien, after which the lienor has 60 days from service to sue or the lien is extinguished automatically.

Lis pendens

A recorded notice that a lawsuit affecting the property is pending. When a lienor sues to foreclose a construction lien, section 713.22, Florida Statutes, provides that the lien is not enforceable against later purchasers or creditors acting in good faith unless a notice of lis pendens is recorded.

Lien waiver and release

A document giving up lien rights for work already furnished, usually exchanged for a progress or final payment. Under section 713.20, Florida Statutes, lien rights cannot be waived in advance, the statute provides model forms for progress and final payment waivers, and no one may require a lienor to sign a form that differs from them.

Payment bond

A surety bond, posted by the contractor under section 713.23, Florida Statutes, in at least the amount of the direct contract, that stands in place of the owner's property. When a proper bond is recorded with the Notice of Commencement, unpaid lienors look to the bond rather than filing liens, and their rights depend on a notice to the contractor within 45 days of starting work and a sworn notice of nonpayment within 90 days of final furnishing. Read our guide to the notice of nonpayment.

Notice of nonpayment

The sworn written notice an unpaid lienor on a bonded project serves on the contractor and the surety under section 713.23, Florida Statutes. It must be served no later than 90 days after the lienor's final furnishing, it must state the amount unpaid and separately the retainage, and serving it is a condition of recovering under the bond. A fraudulent notice forfeits the lienor's bond rights.

Personal injury

The words that decide what a Florida injury claim is worth and how long you have to bring it.

Negligence

The failure to use the care a reasonably careful person would use in the same situation. To recover, an injured person must prove four things: the defendant owed a duty of care, breached it, the breach caused the injury, and the injury produced damages. Almost every car, boat, and slip and fall case is a negligence case. See personal injury.

Statute of limitations

The deadline for filing a lawsuit. Under section 95.11, Florida Statutes, an action founded on negligence must be filed within two years, and so must an action for wrongful death. An action on a written contract generally gets five years. Missing the deadline ends the claim regardless of its merit. Read the two-year deadline explained.

Comparative fault

Florida's rule for dividing responsibility. Under section 768.81, Florida Statutes, your recovery in a negligence case is reduced by your own percentage of fault, and a plaintiff found more than 50 percent at fault for their own harm recovers nothing. (Medical negligence cases are excluded from that bar.) It is why the defense in every injury case tries to put some of the fault on you.

Personal injury protection (PIP)

The no-fault coverage every Florida motor vehicle owner must carry. Under section 627.736, Florida Statutes, it pays up to $10,000 in medical and disability benefits and $5,000 in death benefits, covering 80 percent of reasonable medical expenses and 60 percent of lost income, regardless of who caused the crash. See car accidents.

14-day rule

The condition built into PIP: medical benefits are payable only if you receive initial treatment within 14 days after the accident, under section 627.736, Florida Statutes. The same section limits reimbursement to $2,500 if a qualifying provider determines you did not have an emergency medical condition. It is the single most common way Floridians lose PIP benefits after a crash. Read what to do after a car accident.

Transitory foreign substance

The legal name for liquid or debris on a floor. Under section 768.0755, Florida Statutes, a person who slips and falls on a transitory foreign substance in a business must prove the business had actual or constructive knowledge of it and should have fixed it. Constructive knowledge can be shown by how long the condition existed or by how often it recurred. Read what you must prove in a slip and fall case.

Damages (economic and non-economic)

The money a court can award. Economic damages are the measurable losses: medical bills, future care, lost wages, and lost earning capacity. Non-economic damages compensate pain, suffering, disfigurement, and loss of enjoyment of life. Each category has to be proven with evidence, which is why the record you build in the first weeks matters.

Wrongful death

A claim for a death caused by another person's wrongful act or negligence. Under section 768.20, Florida Statutes, the action is brought by the decedent's personal representative for the benefit of the survivors and the estate. Like negligence claims, it carries a two-year filing deadline under section 95.11.

Contingency fee

A fee arrangement in which the attorney's fee is a percentage of the recovery and is owed only if there is a recovery. Florida's Bar rules require a contingency fee contract to be in writing and require the client to receive a Statement of Client's Rights. Costs, such as medical records, filing fees, and witness fees, are separate from the fee, and how they are handled must be explained in writing before you sign. See how we charge.

Settlement and release

A settlement resolves a claim by agreement rather than verdict. The release is the signed document that ends the claim for good in exchange for the payment, so it has to be read with care: once signed, you generally cannot reopen the case even if injuries turn out worse than expected. Read what Florida protects after a settlement.

Maritime and boating

The vocabulary of cruise ship, vessel, and jet ski cases, where federal and Florida law overlap.

Admiralty (maritime) law

The body of federal law that governs injuries, contracts, and property on navigable waters. Federal courts have admiralty jurisdiction under 28 U.S.C. § 1333, and the substantive rules come from federal statutes and the judge-made general maritime law. Which body of law applies can change the deadline, the damages, and the court. See maritime law.

General maritime law

The federal common law of the sea, developed by the courts. For a cruise passenger injured on board, it supplies the governing standard: the carrier owes a duty of reasonable care under the circumstances, the rule stated in Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959). It is not Florida premises liability and it is not the Jones Act.

Jones Act

The federal statute, 46 U.S.C. § 30104, that lets a seaman injured in the course of employment, or the personal representative of a seaman who died, bring a negligence action against the employer with the right to a jury trial. It protects crew, not passengers.

Maintenance and cure

A seaman's right under general maritime law to a daily living allowance (maintenance) and medical care (cure) from the employer for an injury or illness that arises while in the service of the vessel, until maximum medical improvement. It is owed regardless of fault, separately from any Jones Act claim.

Passenger ticket contract

The terms a cruise passenger accepts when booking. Federal law, 46 U.S.C. § 30526, allows the carrier to require written notice of an injury claim within as little as six months and a lawsuit within as little as one year, and the major lines use limits at or near those minimums. The ticket also chooses the court. Use the cruise injury deadline calculator.

Forum selection clause

The ticket provision that names the only court where a passenger may sue, typically the U.S. District Court for the Southern District of Florida in Miami for Carnival, Royal Caribbean, and Norwegian, and the Middle District of Florida in Orlando for Disney. The Supreme Court upheld these clauses in Carnival Cruise Lines v. Shute, 499 U.S. 585 (1991). Filing in the wrong court costs you the case.

Limitation of Liability Act

The 1851 federal statute, now 46 U.S.C. §§ 30501 through 30530, that lets a vessel owner ask a federal court to cap its liability at the post-casualty value of the vessel plus pending freight, for losses that occurred without the owner's privity or knowledge (46 U.S.C. § 30523). The owner must file within six months after receiving written notice of a claim (46 U.S.C. § 30529).

Maritime lien and vessel arrest

A security interest in a vessel itself that arises by operation of admiralty law for those who supply necessaries (fuel, repairs, dockage, crew wages) or hold certain tort claims against the vessel, governed by the Federal Maritime Lien Act, 46 U.S.C. §§ 31301 through 31343. It is enforced in rem by arresting the vessel in federal court under Supplemental Admiralty Rule C.

Personal watercraft (PWC)

The statutory term for a jet ski, WaveRunner, or Sea-Doo. section 327.39, Florida Statutes, requires every rider and anyone being towed to wear an approved life jacket, requires the operator to attach the engine cutoff lanyard, prohibits operation from a half hour after sunset to a half hour before sunrise, bars anyone under 14 from operating, and treats wake jumping too close to another vessel and last-second swerving as reckless operation. See jet ski accidents.

Livery (vessel rental)

A business that rents vessels, including jet skis, without providing a licensed captain. Under section 327.54, Florida Statutes, a livery needs a permit from the Fish and Wildlife Conservation Commission, must give pre-rental instruction and keep a signed record of it, may not rent a motorized vessel to anyone under 18, and must carry insurance of at least $500,000 per person and $1,000,000 per event, or obtain a signed acknowledgment from a renter who declines renter coverage.

Boating safety education card

The card the Fish and Wildlife Conservation Commission issues after an approved boating safety course. Under section 327.395, Florida Statutes, anyone born on or after January 1, 1988 must have it, or a temporary certificate, to operate a vessel with a motor of 10 horsepower or more in Florida, with exceptions that include some rentals and operating with a qualified adult aboard.

Boating accident report

Under section 327.30, Florida Statutes, the operator of a vessel involved in an accident must give notice to the Fish and Wildlife Conservation Commission, the sheriff, or local police when it involves an injury needing treatment beyond immediate first aid, a death or disappearance, or apparent property damage of at least $2,000. Leaving the scene of an injury accident is a felony. The resulting report usually anchors the civil case.

Business and civil litigation

Terms from the business side of the practice and from civil claims for fraud and theft.

Operating agreement

The contract among the members of a Florida limited liability company that governs how it is owned, managed, and wound up. section 605.0105, Florida Statutes, lists what the agreement may control and the handful of rules it cannot override. Without one, the default rules of the Florida Revised Limited Liability Company Act apply. See business law.

Shareholder agreement

An agreement among the shareholders of a corporation on matters such as management, transfer restrictions, and dispute resolution. section 607.0732, Florida Statutes, allows such agreements to override many of the corporate statute's default rules when the statutory requirements are met. See shareholder and buy-sell agreements.

Buy-sell agreement

The part of an operating or shareholder agreement (or a standalone contract) that says what happens to an owner's interest on death, disability, divorce, or departure: who can buy, at what price, and how it is paid. It is the document that keeps a co-owner's heirs or ex-spouse from becoming your new business partner. Read business succession planning in Florida.

Outside general counsel

An arrangement in which a company without an in-house lawyer engages a firm for a flat monthly fee covering a defined set of services, such as contract review, day-to-day legal questions, and vendor or employment issues, with a stated rate for anything beyond that scope. See outside general counsel.

Registered agent

The person or company a Florida business entity designates, at a Florida street address, to receive lawsuits and official notices on its behalf. It appears on the entity's Sunbiz record and must be kept current, because service on the registered agent is service on the company.

Fictitious name (DBA)

Any name a business uses that differs from its legal name. Under section 865.09, Florida Statutes, the name must be registered with the Florida Department of State before doing business under it. The exemption for businesses formed by Florida attorneys and for entities registered with the Division of Corporations does not apply when the name used differs from the name as licensed or registered.

Civil theft and treble damages

Florida's civil remedy for theft and for exploitation of an elderly or disabled adult. Under section 772.11, Florida Statutes, a person who proves by clear and convincing evidence that they were injured by a violation of the theft statutes can recover three times their actual damages, with a $200 minimum, plus attorney's fees and costs. A written demand for the treble amount must be sent first, and the recipient has 30 days to comply. Read civil remedies for fraud and theft or try the recovery estimator.

Mediation

A settlement conference run by a neutral mediator, who has no power to decide the case but helps the parties reach their own agreement. Florida courts routinely order it in civil cases before trial, and it is often where a civil case ends. See civil litigation.

Working with a lawyer

How engagements are structured at Scheer Legal, so the fee conversation is never a surprise.

Flat fee

A single, quoted price for a defined piece of work, such as an estate plan or a business formation, confirmed in writing before the work begins. The price does not change with the hours involved. Litigation and other open-ended matters are billed hourly instead. See fees.

Retainer

A word with two meanings. For outside general counsel work it means a flat monthly fee covering a defined set of services. For hourly matters it means an advance deposit held in the firm's trust account and applied to invoices as the work is billed, with any unused balance returned.

Engagement letter

The written agreement between you and the firm that defines what the firm will do, what it will not do, how the fee works, and what each side is responsible for. Nothing starts without one, and if the scope later changes, the letter is updated in writing.

Consultation

The first conversation about your matter, by phone, video, or in person at the Plantation office, in English or Spanish. The consultation is free for personal injury and estate planning matters. For business, litigation, construction, and general counsel matters, the initial call is short and ends with you knowing how the fee would work before anything is signed. Schedule one here.