Florida § 95.03 and the Eighteen-Month M&A Survival Clause Trap
This post uses hypothetical scenarios for illustrative purposes only. It does not describe any actual client, transaction, or representation, and is not legal advice.
A Jacksonville founder closed an asset sale eighteen months ago. The merger agreement was governed by Florida law, with venue in Duval County. The survival period for the general representations and warranties was eighteen months — standard, in line with the buyer’s first markup, and what the founder’s prior deal counsel had said was the market middle. The escrow released on schedule. The founder moved on.
Then, twenty months after closing, the buyer filed an indemnification claim. Not a small one. The buyer asserted breach of several general reps tied to the condition of certain receivables and the title to certain assets, and the buyer asserted the claim was timely under Florida’s five-year breach-of-written-contract statute of limitations notwithstanding the merger agreement’s stated eighteen-month survival period. The founder’s counsel pointed at the survival period. The buyer’s counsel pointed at Florida Statute 搂 95.03 and the federal and state authority reading the statute to void contractual provisions shortening the limitations period — including a federal court applying Florida law in RMD Holdings, Ltd. v. HD Supply Construction Supply, Ltd., which struck down a one-year contractual claims period as inconsistent with 搂 95.03 and Florida’s five-year written-contract limitations period. The survival period did not survive.
This is the Florida survival-clause problem that most M&A counsel outside the state have not internalized, and that Florida counsel needs to be raising at the term-sheet stage on any deal with a Florida nexus.
What 搂 95.03 actually says, and what it does to a survival clause
Florida Statute 搂 95.03, captioned “Contracts shortening time,” reads that any provision in a contract fixing the period of time within which an action arising out of the contract may be begun at a time less than that provided by the applicable statute of limitations is void. The statute has been on the books for over a century. The text is at , and practitioner commentary — including the Berger Singerman piece syndicated on Lexology under the heading “Short Survival Periods May Not Work in Florida” — is uniform on the point.
The applicable statute of limitations for a breach of a written contract in Florida is five years under 搂 95.11(2)(b). For breach of an oral contract, it is four years. For most claims that arise under a written purchase agreement — the indemnification covenant is itself a contractual claim — the limitations clock is the five-year clock. A merger agreement governed by Florida law that purports to limit indemnification claims to a period shorter than five years from closing is purporting to do exactly what 搂 95.03 voids.
The buyer in the Jacksonville example was making a textbook argument. The merger agreement said eighteen months. The statute said any contractual provision shortening the limitations period is void. The buyer was not asserting a six-year-old claim. The buyer was asserting a twenty-month-old claim, and the agreement’s eighteen-month limit, the buyer argued, was the only thing standing in the way. Under 搂 95.03, that limit is not standing in the way at all. The claim is timely.
The standard rebuttal — that the parties freely negotiated the survival period and that 搂 95.03 should not apply to sophisticated commercial agreements — has not gotten meaningful traction. The statute does not carve out sophisticated parties, and the courts that have considered the question have applied it to negotiated commercial agreements. Where courts have found ways around 搂 95.03, they have generally done so by characterizing the contractual provision as a notice requirement rather than as a limitations-shortener, and that line is not always available on the survival language deal counsel typically uses.
Why this matters more in 2026 than it did five years ago
For many years, the practical exposure on 搂 95.03 was bounded by two facts. First, plenty of M&A in Florida had been getting done under Delaware law, which has no equivalent statute and where contractual survival periods are enforced as written. Second, even where Florida law applied, claims that surfaced after the survival period had run frequently were not pursued, because of the buyer’s perception that the contractual term was the operative term.
Three trends in the 2024 to 2026 deal market have changed that calculus.
The first is the meaningful uptick in Florida-domiciled corporate activity post-2022, both through new formations and through redomestication. The expansion of Florida’s complex business litigation divisions — now operating in the Ninth, Eleventh, Thirteenth, and Seventeenth Circuits, with the Ninth Circuit’s business court extending to Osceola County in 2023 — together with the Florida Bar’s continuing effort to draw sophisticated transactional work into the state, has produced a noticeably larger pool of deals being negotiated under Florida law than was the case ten years ago.
The second is the rise of structured indemnification programs — rep-and-warranty insurance with policy retentions, multi-tier escrows, and longer fundamental and tax rep survival periods — that have made the post-closing indemnification process a more active and economically significant phase of the deal. Buyers and their RWI insurers are pursuing claims through the survival window and, increasingly, testing the boundaries of when claims are or are not timely. The contractual survival period is no longer just a nominal term.
The third is the deal-bar awareness, on both sides, of which statutes have actually been enforced in court. 搂 95.03 is being raised more often in motion practice because Florida-counsel litigators have surfaced it as a live argument. When the buyer’s counsel knows the statute, the survival clause is not the agreement the parties wrote — it is the agreement they wrote, less whatever provisions 搂 95.03 voids.
What to do about it in the deal documents
There are three drafting strategies for handling 搂 95.03 in a Florida-nexus deal, and the right answer depends on the party’s position and the deal’s facts.
The first strategy is to switch the governing law. Picking Delaware law is the cleanest answer if the parties’ Florida connection is loose — a Florida operating subsidiary of a Delaware parent, a Florida office without a Florida formation, or a Florida selling stockholder without a Florida-domiciled target. Delaware law enforces contractual survival periods as written, and Delaware has no analogue to 搂 95.03. The parties’ freedom of contract on choice of law makes Delaware available in most fact patterns even where the target’s center of gravity is Florida, though the choice will not bind a Florida court that finds Florida has the materially greater interest in the dispute and a fundamental public policy at stake. Because 搂 95.03 reflects a Florida statutory policy on contractual limitations, that override risk is not zero. The cleaner the contractual choice and the deeper the parties’ rational basis for it, the more likely it survives.
The second strategy is to restructure the survival clause as a notice-of-claim provision rather than as a shortening of the limitations period. The wording matters. A survival clause that says “the representations and warranties shall survive for eighteen months following the closing, after which they shall be of no further force and effect” is the classic 搂 95.03 target. A clause that says “no claim for breach of the representations and warranties may be made unless written notice of such claim has been delivered to the seller within eighteen months following the closing, in which event the claim shall be timely if commenced within the applicable statute of limitations” is doing different work. It is a notice requirement, not a contractual shortening of limitations, and 搂 95.03 by its terms reaches only the latter. The notice formulation does not always insulate the buyer from a 搂 95.03 challenge — a sufficiently aggressive court could re-characterize a notice clause as a de facto limitations shortener — but it sits in different doctrinal territory and is materially harder to invalidate.
The third strategy is to extend the survival period to five years and price the deal accordingly. This is the brute-force answer, and it is the right answer when the target’s operations are Florida-centered, the venue is Florida, and the choice-of-law clause cannot defensibly point to a non-Florida jurisdiction. A five-year general-rep survival period is longer than the founder will want and longer than the buyer will normally insist on, but it is the contractual term that aligns with 搂 95.11 and does not invite a void-and-strike argument. The pricing consequence falls on the founder — the founder’s tail exposure is larger, and the escrow may need to be sized to reflect it, or RWI structured to bridge the gap.
Where the bar has actually landed
Practitioner commentary has been clear about the problem and the strategies. The Berger Singerman piece on Lexology lays out the doctrine and the workarounds. The Florida transactional bar — particularly in Miami, Orlando, and Tampa — routinely flags 搂 95.03 in cross-state deals where the buyer’s New York or Delaware counsel has not anticipated it. What is uneven is which deal teams catch the issue at the term-sheet stage, before the survival clause has hardened into the definitive agreement and the parties’ pricing has been built around a term that the statute will not let stand.
The pattern I see most in Florida-nexus deals coming through Fernandina Beach is the buyer’s first markup containing an eighteen-to-twenty-four month survival period, the seller’s first markup containing a twelve-to-fifteen month survival period, and neither party raising 搂 95.03. The agreement closes with the negotiated term. Eighteen months pass uneventfully. Then, in the rare case where a claim surfaces in months nineteen through sixty, the statute resurfaces. The party that gets surprised is the party whose Florida-counsel deal team did not flag the issue at signing — almost always the seller, because the seller is the party relying on the survival period to provide actual finality. The Florida-specific deal patterns sit alongside the broader Florida M&A practice, the Delaware-side analogue addressed in our note on whether a survival clause can bury fraud, and the deeper structural points covered in indemnification cap architecture and RWI in Florida middle-market M&A. The corporate-formation and governance issues that interact with the Florida survival-clause problem are summarized on the corporate governance page.
The takeaway is operational. On any Florida-nexus deal — meaning Florida-formed entity, Florida-resident seller, Florida real estate or operations — 搂 95.03 is a term-sheet issue. Either the parties switch governing law for a defensible reason, the parties draft the notice-and-claim formulation rather than the survival-period formulation, or the parties extend the survival period to align with 搂 95.11. Pretending the standard eighteen-month survival period works in a Florida-governed agreement is the cheapest mistake to make and the most expensive one to discover after the buyer files the claim.
If you are a Florida founder or Florida buyer about to sign a purchase agreement with a Florida choice-of-law clause and a survival period shorter than five years, or a counterparty negotiating with one and wondering whether the survival period is doing what the lawyers think it is, feel free to reach out to my firm manager, Magda, at Magda@montague.law, or fill out our contact form. Mention you read this post.
