Statutes relating to the enforcement of money judgments require careful reading and analysis.
The below summarizes CPLR § 5208 [Enforcement after death of judgment debtor; leave of court; extension of lien].
In New York, the death of a judgment debtor triggers surrogate jurisdiction over the debtor's assets unless:
- An execution has already been issued on a properly docketed judgment lien against real property or
- A "levy" to take personal property is already in process.
Following death, any judgment-related activity falling short of the above will be stayed until a personal representative is appointed over the debtor's estate. If no such representative is sought within 18 months, the judgment creditor may seek permission from the underlying court to take further steps to enforce the judgment.
But a judgment lien already existing against the decedent's real property will remain a judgment until the later of 1) two years after death or 2) ten years after the filing of the judgment roll.
Stated another way:
- After someone dies, their debts cannot be collected from their property or money owed to them without permission from the court handling their estate (the money and property they left behind).
- If the court hasn't granted permission within 18 months after the person's death, the creditor (the person or company owed money) can ask another court to collect the debt.
- Any claim on the property of the person who died (judgment lien) will end either two years after they die or ten years after the court officially recorded the debt, whichever is later.
- These rules can be different if another law says so.
The policy behind this statute is to protect the debtor's estate, protect other creditors by investigating lien priority (for example, funeral expenses and tax debt are higher priority liens), and ensure fair play.
Three Main Takeaways of CPLR § 5208:
- Court Permission is Essential: After a debtor's death, the court overseeing the estate must authorize any debt collection efforts. If no personal representative is appointed within 18 months, the creditor can seek permission from another court.
- Respect for Lien Priorities: The statute aims to protect the debtor's estate and other creditors by investigating lien priorities, ensuring that higher-priority debts like funeral expenses and tax debts are addressed first.
- Seek Professional Help: If you are dealing with frozen bank accounts or wage garnishments, it is crucial to seek professional legal assistance. Submit our intake form for personalized help.
Summary of Commentary by Richard C. Reilly on N.Y. C.P.L.R. 5208. Commentary refers to a written analysis or explanation of a legal text, such as statutes, regulations, or case law:
Enforcement after Death of Judgment Debtor:
- Special rules apply when the judgment debtor dies before satisfaction of the judgment.
- Different outcomes depend on the type of property involved and whether the judgment became a lien before death.
- Confusion and disagreement exist among judges regarding these rules.
Real Property:
If execution is issued and levied before the debtor's death, the levy can be perfected after death.
If the judgment becomes a lien before death, but execution isn't issued, leave from the surrogate's court is needed to levy on real property.
Purpose of requiring leave is to ensure protection of the estate and prioritize debts.
In Oysterman's Bank & Trust Co. v. Weeks (35 A.D.2d 580, 313 N.Y.S.2d 535 [2d Dept. 1970]), it was held that levy and sale can proceed without leave of the surrogate if execution was issued before death and real property was duly lenied.
Personal Property:
- Different and complex issues arise with personal property priorities.
- Execution results in a lien on personal property upon delivery, but death of the debtor before levy cancels the lien.
- Leave from the surrogate is required for levy on personal property.
Purpose of Requiring Leave:
- Various reasons for requiring leave include considering other assets, sentimental value, or personal circumstances.
- Surrogate can permit or restrain levy based on circumstances presented.
Timeframe and Extensions:
- 18 months after death is given to appoint a personal representative; after this, leave can be obtained from the court.
- Real property lien period is extended to two years if less than two years remain at the debtor's death to compensate for enforcement delay.
Submit our intake form if you need legal assistance. We mainly represent consumers suffering from frozen bank accounts and wage garnishments.
When Nursing Homes Sue Adult Children After a Parent's Death: Understanding CPLR § 5208's Limited Protection
Following our comprehensive guide on CPLR § 5208's enforcement restrictions, many adult children ask: "Can a nursing home come after me for my parent's unpaid bill?" The answer involves understanding what CPLR § 5208 does—and doesn't—protect.
The Harsh Reality: Your Parent Dies, The Nursing Home Sues You
Increasingly, nursing homes are bypassing traditional estate collection to sue adult children directly.Understanding CPLR § 5208's role—and its limits—is crucial.
What CPLR § 5208 Actually Protects
CPLR § 5208 creates a procedural shield around your deceased parent's property:
- Automatic Stay: Collection from your parent's assets is frozen upon death
- 18-Month Buffer: Nursing homes must wait for proper estate administration
- Court Oversight Required: After 18 months, facilities need permission to collect from estate
What It Doesn't Protect: You
Here's the critical distinction: CPLR § 5208 governs collection from the deceased's property, not lawsuits against living people. When nursing homes sue adult children personally, they're not enforcing a judgment against the deceased—they're creating new claims against the living.
How Nursing Homes Circumvent Estate Procedures
The Direct Attack Strategy
Instead of following CPLR § 5208's requirements for estate collection, facilities often:
- Skip the estate entirely
- Sue children as "beneficiaries" under EPTL § 12-1.1
- Allege children received fraudulent transfers
- Claim children are personally liable for the debt
These lawsuits against you aren't restricted by CPLR § 5208 because you're not the deceased judgment debtor.
Why This Matters
- No 18-Month Wait: Facilities can sue you immediately after your parent's death
- No Surrogate Permission Needed: They file in Supreme Court, not Surrogate's Court
- No Estate Priority Rules: They're seeking your personal assets, not estate assets
Common Scenarios Adult Children Face
Scenario 1: The Property Transfer Claim:
What Happens: Your parent transferred their home to you years before entering the nursing home.
The Allegation: This was a "fraudulent transfer" to avoid paying for care. CPLR § 5208's Role: Minimal—this is a claim against you, not estate enforcement
Scenario 2: The Beneficiary Liability Claim:
What Happens: You're named in your parent's will.
The Allegation: As a beneficiary, you're liable for estate debts. CPLR § 5208's Role: Only relevant if there's actual estate property to collect
Scenario 3: The Joint Account Claim
What Happens: You were on your parent's bank account to help with bills
The Allegation: You took money that should have paid the nursing home. CPLR § 5208's Role: None—this is about your alleged actions, not estate collection
Your Actual Protections (Outside CPLR § 5208)
Federal Law Prohibitions
- 42 U.S.C. §1396r(c)(5)(A)(ii) prohibits requiring family guarantees
- Facilities cannot make you sign as a responsible party
- Creative legal theories may violate this federal protection
State Law Defenses
- You're not automatically liable for a parent's debts
- EPTL § 12-1.1 only applies if you actually received estate property
- Fraudulent transfer claims have specific elements that must be proven
Practical Defenses
- No personal guarantee = no personal liability
- Medicaid planning isn't automatically fraudulent
- Time limits and procedural requirements still apply
Three Key Takeaways for Adult Children
CPLR § 5208 Protects Your Parent's Estate, Not You: While it creates hurdles for collecting from your deceased parent's property, it doesn't stop nursing homes from suing you personally on other theories.
Different Court, Different Rules: Estate collection goes through Surrogate's Court with CPLR § 5208 protections. Lawsuits against you go to Supreme Court without those restrictions.
You Need Different Defenses: Don't rely on CPLR § 5208 to protect you from personal liability. You need defenses specific to the claims against you—federal protections, lack of personal guarantee, or challenging the alleged transfers.
Red Flags to Watch For
During Your Parent's Life:
- Pressure to sign admission documents as "responsible party"
- Requests for your financial information
- Suggestions you personally guarantee payment
After Your Parent's Death:
- Lawsuits naming you personally, not the estate
- Claims you received property or money
- Allegations of fraudulent transfers
- Service of legal papers at your home
The Bottom Line on CPLR § 5208
Think of CPLR § 5208 as a fence around your deceased parent's property—it makes nursing homes follow proper procedures to collect from the estate. But that fence doesn't extend to you. When facilities sue adult children directly, they're operating outside CPLR § 5208's framework entirely.
This distinction is crucial: arguing CPLR § 5208 violations won't help when you're the defendant. You need defenses aimed at the personal liability theories being used against you.
What Should You Do?
If Your Parent Dies with Nursing Home Debt:
- Don't Assume Personal Liability: You're not automatically responsible
- Document Everything: Especially Medicaid applications and approvals
- Understand the Estate Process: CPLR § 5208 protects estate administration
If You're Sued Personally:
- Don't Ignore It: Default judgments are real and enforceable
- Seek Legal Help Immediately: Personal liability claims require specific defenses
- Raise All Available Defenses: Federal protections, state law limits, procedural defects
What CPLR § 5208 Accomplishes
CPLR § 5208 serves several important purposes in New York's legal system:
1. Creates an Orderly Estate Administration Process
- Prevents a "race to the courthouse" where creditors scramble to seize assets
- Ensures all creditors are treated fairly, not just the most aggressive ones
- Allows time for proper inventory and valuation of estate assets
2. Protects Creditor Priority System
- Ensures higher-priority debts get paid first (funeral expenses, taxes, administration costs)
- Prevents lower-priority creditors from jumping the line
- Maintains the statutory hierarchy of claims against estates
3. Provides Court Oversight
- Requires judicial supervision of post-death collection
- Ensures someone reviews whether enforcement is appropriate
- Prevents abusive or improper collection tactics
4. Gives Families Breathing Room
- The 18-month waiting period allows time to grieve and organize
- Families can properly administer the estate without harassment
- Reduces pressure during an emotionally difficult time
5. Coordinates Two Court Systems
- Bridges the gap between Supreme Court (where judgments originate) and Surrogate's Court (which handles estates)
- Prevents jurisdictional conflicts
- Ensures proper court has oversight of estate assets
6. Preserves Estate Assets
- Prevents premature liquidation of property
- Allows for orderly sale of assets if needed
- Protects sentimental or family property from hasty seizure
7. Balances Competing Interests
- Protects legitimate creditor rights (judgments don't disappear)
- Extends liens to ensure creditors aren't prejudiced by delays
- But prevents aggressive collection that could harm estates and families
8. Prevents Legal Chaos
Without CPLR § 5208:
- Multiple creditors could simultaneously execute on property
- Estate assets could be depleted before priority debts are paid
- Families would face immediate collection pressure during grief
- No court would have clear authority over the process
The Bottom Line
CPLR § 5208 essentially hits the "pause button" on judgment enforcement when someone dies, transforming what could be a chaotic free-for-all into an orderly, court-supervised process. It ensures that death triggers a careful, fair procedure rather than a creditor feeding frenzy, while still preserving legitimate creditor rights through lien extensions and eventual enforcement mechanisms.
This balance is crucial in a legal system that must respect both creditor rights and the orderly administration of estates, while also recognizing the human reality of death and its impact on families.