In re Amendments to the Florida Evidence Code, — So.2d —-, 2007 WL 2002629 (Fla. Jul 12, 2007)

Florida’s version of the “Dead Man’s Statute” has been a trap for unwary litigants for over a century.  Widely criticized by commentators, practitioners, and even courts, in 2005 the rule was finally abolished when the Florida legislature repealed section 90.602, Florida Statutes.  For those interested in learning more about this evidentiary rule and why reform was needed, the 2005 legislative staff analysis is an excellent starting point.

In lieu of the Dead Man’s Statute, the Florida legislature created section 90.804(2)(e), Florida Statutes (2005), which added an exception to the hearsay rule to permit relevant communications of deceased or incompetent persons to be heard by the trier of fact.  Due to a quirk of Florida’s constitution, the Florida Supreme Court is required to approve this new evidentiary statute to the extent the new statute is deemed “procedural” in nature.  That’s what the linked-to opinion is meant to do.

Understanding this rule of evidence is fundamental in the probate litigation context, which is why I’ve reproduced it below in its entirety:

90.804 Hearsay exceptions; declarant unavailable.—

(1) [No Change]

(2) HEARSAY EXCEPTIONS.-The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness:

(a)-(d) [No Change]

(e) Statement by deceased or ill declarant similar to one previously admitted.-In an action or proceeding brought against the personal representative, heir at law, assignee, legatee, devisee, or survivor of a deceased person, or against a trustee of a trust created by a deceased person, or against the assignee, committee, or guardian of a mentally incompetent person, when a declarant is unavailable as provided in paragraph (1)(d), a written or oral statement made regarding the same subject matter as another statement made by the declarant that has previously been offered by an adverse party and admitted in evidence.