Insights - November 2, 2023

Contracts After Death: Binding on Estate or Accidental Will?

By Matthew L. Worsham, LL.M, and Melissa C. Steen

Personal representatives have the unenviable task of determining whether a contract is enforceable on the estate, if it expired along with the decedent, or if it is a contract to make a will.

“The appropriate test to determine if a contract was intended to survive the death of one of the contracting parties where the contract is otherwise silent on the issue, is whether the personal representative may perform as fully and as well as the decedent might have.” Bloom v. K & K Pipe and Supply Co., Inc., 390 So. 2d 770, 773 (Fla. 4th DCA 1980). Accordingly, a personal representative can properly refuse to perform a decedent’s contract when it is “personal” to the decedent. Id. The contract is “personal” if it only contemplates the personal performance of the decedent, such as a personal services contract. Id. In Bloom, the Court determined that a non-compete agreement was personal to the decedent and not enforceable. Id. The Third District Court of Appeals determined that a lease extension agreement that specified the decedent was personal and not enforceable by the personal representative. Frankel v. Bernstein, 334 So. 2d 37, 39 (Fla. 3d DCA 1976).

The personal representative has a duty to carry out the decedent’s non-personal contracts and, if they fail to do so, they may be compelled to pay damages with the assets in their hands. Frissel v. Nichols, 114 So. 431, 434 (Fla. 1927). In Gunderson v. School District of Hillsborough County, the Court determined that a pre-death settlement agreement with the decedent’s employer was enforceable by the personal representative. 937 So. 2d 777, 780 (Fla. 1st DCA 2006). Because the settlement agreement’s performance could statutorily be performed by the personal representative, the contract  was not personal to the decedent and thereby enforceable. Id.

When a person intends a contract to survive death, they run the risk of accidentally making a contract to create a will under section 732.701, Florida Statutes. A written promise to leave money to an educational institution was deemed to be a contract to make a will and was not executed with the necessary formalities. See Talmudical Academy of Baltimore v. Harris, 238 So. 2d 161, 161-62 (Fla. 3d DCA 1970). An oral contract to care for the decedent in exchange for being named as the principal beneficiary of the estate was considered a contract to make a will and invalid for failing to be in writing and having two witnesses. Renfro v. Dodge, 520 So. 2d 690 (Fla. 4th DCA 1988).

When drafting contracts for your clients, practitioners should be aware of these general rules, especially when drafting contracts that may be later deemed invalid under section 732.701, Florida Statutes.

© 2023 This article was originally published in the November 2023 SideBar, the newsletter of the Martin County Bar Association.

About Matthew L. Worsham

Matthew Worsham is a member of Jones Foster's Complex Litigation & Dispute Resolution and Private Wealth, Wills, Trusts & Estates practice groups and focuses his practice in the areas of probate, guardianship, and trust litigation and trust and estate administration. He represents individual beneficiaries, heirs, fiduciaries, and corporate fiduciaries in probate, guardianship, and trust-related matters, including will and trust contests, trustee/personal representative removal actions, accounting actions, will and trust reformation and modification matters, and elective share cases. Matthew's previous experience includes commercial and employment litigation matters.

Matthew is actively involved in several legal organizations, including as chair of the Martin County Bar Association's Wills, Trusts & Estates/Probate Committee, and The Florida Bar’s RPPTL Section and Trial Lawyers Section.

About Melissa C. Steen

Melissa Steen is a member of the Complex Litigation & Dispute Resolution and Private Wealth, Wills, Trusts & Estates practice groups. She represents clients in litigation involving trusts and estates, guardianship, and fiduciary disputes, as well as commercial litigation matters.

Melissa is involved in several legal organizations, including the Florida Association for Women Lawyers Palm Beach County chapter, where she is a member of its FAWL in Love With GAL Committee, The Florida Bar’s Real Property, Probate and Trust Law Section, and the Palm Beach County Bar Association’s Young Lawyers Section. She has been selected by her peers for inclusion in the peer-reviewed publication The Best Lawyers in America, where she was recognized on the Best Lawyers: Ones to Watch in America list for trusts and estates litigation.

About Jones Foster

Jones Foster is a commercial and private client law firm headquartered in West Palm Beach, Florida. Established in 1924, the Firm has served as an integral part of South Florida’s growth and prosperity for nearly a century. Through a relentless pursuit of excellence, Jones Foster delivers original legal solutions that help clients, colleagues, and the community to move forward. Notably, the majority of the firm’s Shareholders have received the designation of Board-Certified Specialist by The Florida Bar in their specific practice area. The firm’s attorneys focus their practice in Real Estate, Complex Litigation & Dispute Resolution, Private Wealth, Wills, Trusts & Estates, Corporate & Tax, and Land Use & Governmental. For more information, please visit