Alfred Witko v. Frank Effman Weinberg, 374 F.3d 1040 (11th Cir. 2004). · Go Syfert
Alfred Witko v. Frank Effman Weinberg, 374 F.3d 1040 (11th Cir. 2004). Cases Citing This Book View Copy Cite
“pre-petition causes of action are part of the bankruptcy 2 estate and post-petition causes of action are not.”
187 citation events (187 in the last 25 years) across 34 distinct courts.
Strongest positive: Woodson v. Board of Directors of the Harbor Hill Condominium Homeowners Association (cand, 2020-09-04) · Strongest negative: Carey Macon (gasb, 2025-05-02)
Treatment trajectory · 2004 → 2026 · click a year to view as-of
2004 2015 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited "but see" Carey Macon (2×) also: Cited as authority (rule)
Bankr. S.D. Ga. · 2025 · signal: but see · confidence high
But see D’Antignac, 2013 WL 1084214 , at *6. 62 Debtor] would lose his [2010 personal injury] claim due to his attorney’s malpractice.” Witko, 374 F.3d at 1044 .
discussed Cited as authority (quoted) Woodson v. Board of Directors of the Harbor Hill Condominium Homeowners Association
N.D. Cal. · 2020 · signal: see · quote attribution · 1 verbatim quote · confidence high
pre-petition causes of action are part of the bankruptcy 2 estate and post-petition causes of action are not.
examined Cited as authority (rule) Garvin v. West Coast WinSupply, Inc. (3×) also: Cited "see"
Bankr. N.D. Fla. · 2025 · confidence medium
While “federal law determines whether an interest is property of the bankruptcy estate, . . . property interests are created and defined by state law. [T]here is no reason why such interest should be analyzed differently simply because an interested party is in bankruptcy.” See In re Witko, 374 F.3d at 1043 (citation, quotation marks, and brackets omitted).
discussed Cited as authority (rule) Kenneth Fremont Burris and Elaine Lucille Burris
Bankr. N.D. Ga. · 2022 · confidence medium
“The question of whether a debtor's interest in property is property of the estate is a federal question, but the definition of property and issues about the nature and existence of the debtor's interest, are issues of state law.” Bracewell v. Kelly (In Re Bracewell), 454 F.3d 1234, 1243 (11th Cir. 2006). “[W]e look to state law to determine when a claim arises, and if it arises on or before the commencement of the bankruptcy case, it is part of the bankruptcy estate.” Id. at 1242 . “[U]nless some federal interest requires a different result, there is no reason why such interests sho…
discussed Cited as authority (rule) James Franklin Cook, Jr.
Bankr. N.D. Ga. · 2020 · confidence medium
Debtor raised no issues with respect to the conduct of the underlying foreclosure sale. 14 See Butner v. United States, 440 U.S. 48, 54-55 , 99 S. Ct. 914 , 59 L.Ed.2d 136 (1979); Witko v. Menotte, (In re Witko), 374 F.3d 1040, 1043 (11th Cir. 2004); and Commercial Fed.
discussed Cited as authority (rule) JAMES J. GIBSON & DR. LORI G. GIBSON v. WACHOVIA BANK (2×) also: Cited "see"
Fla. Dist. Ct. App. · 2018 · confidence medium
"Thus, a debtor possesses 'an existing interest [in the refund] at the time of filing even though his enjoyment of that interest was postponed.' " Id. (alteration in original) (quoting In re Witko, 374 F.3d at 1043).
cited Cited as authority (rule) Coslow v. Reisz (In re Coslow)
Bankr. W.D. Ky. · 2017 · confidence medium
Witko v. Menotte (In re Witko), 374 F.3d 1040, 1043-44 (11th Cir. 2004) (referring to post petition cause of action).
discussed Cited as authority (rule) Mendelsohn v. Ross (2×)
E.D.N.Y · 2017 · confidence medium
Contrary to the court’s assertion, the court in In re Witko correctly noted that post-petition claims in Segal were the property of the bankruptcy estate because the "predicates for receiving the refunds ... occurred pre-petition.” In re Witko, 374 F.3d at 1043.
discussed Cited as authority (rule) Labgold v. Regenhardt
Bankr. E.D. Va. · 2017 · confidence medium
Ill. 2005) (“Put simply, ‘[p]re-petition causes of action are part of the bankruptcy estate and post-petition causes of action are not.’ ”) (quoting Witko v. Menotte (In re Witko), 374 F.3d 1040, 1042 (11th Cir. 2004)) (alteration in original).
discussed Cited as authority (rule) High-Top Holdings, Inc. v. RREF II BB Acquisitions, LLC (In re High-Top Holdings, Inc.)
Bankr. N.D. Ga. · 2017 · confidence medium
E.g., Butner v. United States, 440 U.S. 48, 55 , 99 S.Ct. 914 , 59 L.Ed.2d 136 (1979); Witko v. Menotte (In re Witko), 374 F.3d 1040, 1043 (11th Cir. 2004); see also Raborn v. Menotte (In re Raborn), 470 F.3d 1319, 1324 (11th Cir. 2006) (per curiam) (certifying questions concerning trusts to the Florida Supreme Court).
discussed Cited as authority (rule) Kelley v. McCormack (In re Mitchell)
Bankr. M.D. Ga. · 2016 · confidence medium
Unless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding.”); Rab orn v. Menotte (In re Raborn), 470 F.3d 1319, 1323 (11th Cir.2006) (under § 541(a)(1), trustee adheres to rights held by debtor at commencement of case); Witko v. Menotte (In re Witko), 374 F.3d 1040, 1042 (11th Cir.2004) (same).
discussed Cited as authority (rule) In re Randolph
Bankr. N.D. Ga. · 2016 · confidence medium
Witko v. Menotte (In re Witko), 374 F.3d 1040, 1043 (11th Cir.2004) (quoting Segal v. Rochelle, 382 U.S. 375, 379 , 86 S.Ct. 511 , 15 L.Ed.2d 428 (1966) and Butner v. U.S., 440 U.S. 48, 55 , 99 S.Ct. 914 , 59 L.Ed.2d 136 (1979)).
discussed Cited as authority (rule) Stokes v. Duncan
Mont. · 2015 · confidence medium
Witko, 374 F.3d at 1044. ¶25 In my judgment, the Court errs in disregarding Stokes’ accrual argument and summarily concluding that Stokes’ claims against Duncan and Glover accrued at or before the filing of the Chapter 11 bankruptcy petition.
cited Cited as authority (rule) Shubert v. Murray (In re Shubert)
Bankr. M.D. Ga. · 2015 · confidence medium
Witko v. Menotte (In re Witko), 374 F.3d 1040, 1043 (11th Cir.2004); see also Butner v. United States, 440 U.S. 48, 54 , 99 S.Ct. 914 , 59 L.Ed.2d 136 (1979).
examined Cited as authority (rule) In re Simmons (3×)
Bankr. M.D. Fla. · 2014 · confidence medium
Id. at 1043-44. .
examined Cited as authority (rule) Underhill v. Huntington National Bank (In Re Underhill) (3×) also: Cited "see, e.g."
6th Cir. · 2014 · confidence medium
See id.; In re Witko, 374 F.3d 1040, 1044 (11th Cir.2004) (concluding that legal-malpractice claim belonged to the debtor because he “did not suffer any harm from the alleged legal malpractice prior to or contemporaneous with filing his bankruptcy petition”); Cook v. Baca, 512 Fed.Appx. 810, 820 (10th Cir.2013) (“Though ... the alleged conspiracies involved property that was the subject of dispute between the parties prior to the bankruptcy filing, the alleged constitutional injuries did not exist prior to the filing.”); In re Pettibone Corp., 90 B.R. 918, 932 (Bankr.N.D.Ill.1988) (“…
cited Cited as authority (rule) Bounds v. Brown McCarroll, LLP (In re Bounds)
Bankr. W.D. Tex. · 2013 · confidence medium
This distinction is significant where, as in Alvarez , the debtor suffers harm “contemporaneous with filing his bankruptcy petition.” See In re Witko, 374 F.3d 1040, 1044 (11th Cir.2004).
discussed Cited as authority (rule) Cook v. Baca (2×) also: Cited "see"
10th Cir. · 2013 · confidence medium
Under this rule, “[p]re-petition causes of action are part of the bankruptcy estate and post-petition causes of action are not.” Witko v. Menotte (In re Witko), 374 F.3d 1040, 1042 (11th Cir.2004).
discussed Cited as authority (rule) In re Webb
Bankr. M.D. Ga. · 2012 · confidence medium
E.g., Witko v. Menotte (In re Witko), 374 F.3d 1040, 1043 (11th Cir.2004) (“State law thus controls Witko’s legal malpractice cause of action and determines whether that claim existed at the time Witko filed his bankruptcy petition.”); In re Smith, 293 B.R. 786, 789 (Bankr.D.Kan.2003) (“The court assumes that the question here — when did a cause of action for personal injury accrue? — is controlled by Kansas law.”).
examined Cited as authority (rule) Williamson v. Hi-Liter Graphics, LLC (5×) also: Cited "see"
Wis. Ct. App. · 2012 · confidence medium
Witko, 374 F.3d at 1042.
discussed Cited as authority (rule) Sidney v. Ragucci (In Re Ragucci)
Bankr. M.D. Fla. · 2010 · confidence medium
A cause of action is considered pre-petition if it is “sufficiently rooted in the pre-bankruptcy past.” Witko v. Menotte (In re Witko), 374 F.3d 1040, 1043 (11th Cir.2004) (citing Segal v. Rochelle, 382 U.S. 375, 380 , 86 S.Ct. 511 , 15 L.Ed.2d 428 (1966)).
cited Cited as authority (rule) Bank of America, N.A. v. Mukamai
11th Cir. · 2009 · confidence medium
This Court also “reviews de novo the question of law whether a debtor’s interest is property of the bankruptcy estate.” Witko v. Menotte (In re Witko), 374 F.3d 1040, 1042 (11th Cir.2004).
cited Cited as authority (rule) In Re Egidi
11th Cir. · 2009 · confidence medium
This Court also "reviews de novo the question of law whether a debtor's interest is property of the bankruptcy estate." Witko v. Menotte (In re Witko), 374 F.3d 1040, 1042 (11th Cir.2004).
discussed Cited as authority (rule) Official Committee of Unsecured Creditors of Tousa, Inc. v. Citicorp North America, Inc. (In Re Tousa, Inc.)
Bankr. S.D. Florida · 2009 · confidence medium
In doing so, the Court recognized that “[u]nder Florida law, a cause of action for legal malpractice has three elements [or prerequisites]: (1) the attorney’s employment; (2) the attorney’s neglect of reasonable duty; and (3) the attorney’s negligence was the proximate cause of loss to the client.” Witko, 374 F.3d at 1043-1044 (citations omitted).
discussed Cited as authority (rule) Crum v. Tomlinson (In Re Hettick)
Bankr. D. Mont. · 2009 · confidence medium
PHS cites Witko v. Menotte (In re Witko), 374 F.3d 1040, 1042-44 (11th Cir.2004) for the rule that where the debtor had sustained no pre-petition harm as a result of pre-petition conduct, the cause of action did not exist at the time of the bankruptcy petition and is not property of the estate, but is for the debtor to pursue.
cited Cited as authority (rule) Williams v. Suntrust Bank (In Re Williams)
Bankr. M.D. Ga. · 2008 · confidence medium
Witko v. Menotte, (In re Witko), 374 F.3d 1040, 1043 (11th Cir.2004).
discussed Cited as authority (rule) Boland v. Crum (In Re Brown)
Bankr. D. Mont. · 2007 · confidence medium
The court disagreed on the basis that the claims were “sufficiently rooted in the pre-bank-ruptcy past”: “Pre-petition causes of action are part of the bankruptcy estate and post-petition causes of action are not.” Witko v. Menotte (In re Witko), 374 F.3d 1040, 1042 (11th Cir.2004).
cited Cited as authority (rule) In Re Howard
Bankr. M.D. Ga. · 2006 · confidence medium
Witko v. Menotte, (In re Witko), 374 F.3d 1040, 1043 (11th Cir.2004).
cited Cited as authority (rule) Howard v. Citizens Bank
Bankr. M.D. Ga. · 2006 · confidence medium
Witko v. Menotte, (In re Witko), 374 F.3d 1040, 1043 (11th Cir.2004).
cited Cited as authority (rule) Chase Home Finance LLC v. Geiger (In Re Geiger)
Bankr. M.D. Ga. · 2006 · confidence medium
Witko v. Menotte, (In re Witko), 374 F.3d 1040, 1043 (11th Cir.2004).
examined Cited as authority (rule) Carroll v. Henry County, Ga. (3×)
N.D. Ga. · 2006 · confidence medium
“Pre-petition causes of action are part of *584 the bankruptcy estate and post-petition causes of action are not.” Id. at 1042.
cited Cited as authority (rule) Pinnacle Bank, N.A. v. Brown (In re Brown)
Bankr. M.D. Ga. · 2005 · confidence medium
Witko v. Menotte (In re Witko), 374 F.3d 1040, 1043 (11th Cir.2004).
cited Cited as authority (rule) Gingold v. Allen
Ga. Ct. App. · 2005 · confidence medium
Witko v. Menotte (In re Witko), 374 F3d 1040, 1042-1044 (11th Cir. 2004); Johnson, 224 F3d at 1278, n. 12 .
examined Cited as authority (rule) Bracewell v. Kelley (In Re Bracewell) (4×) also: Cited "see"
M.D. Ga. · 2005 · confidence medium
This assumption underscores the fact that, “[t]he Supreme Court did not allow the Segal trustee to assert more rights than the debtor had at the commencement of the case; it merely allowed the trustee to seek the interests existing, though still undetermined in quantity, at the time the debtor filed his petition.” In re Witko, 374 F.3d at 1043 (interpreting Segal).
examined Cited as authority (rule) Holstein v. Knopfler (In Re Holstein) (3×) also: Cited "see", Cited "see, e.g."
Bankr. N.D. Ill. · 2005 · confidence medium
Witko v. Menotte (In re Witko), 374 F.3d 1040, 1043-44 (11th Cir.2004); Brunswick Bank & Trust Co. v. Atanasov (In re Atanasov), 221 B.R. 113, 116-17 (D.N.J.1998); Swift v. Seidler (In re Swift), 198 B.R. 927, 930-32 (Bankr.W.D.Tex.1996).
discussed Cited as authority (rule) Irwin v. Olson & Bearden (In Re Irwin) (2×)
Bankr. M.D. Fla. · 2005 · confidence medium
In re Wit-ko, 374 F.3d at 1042.
cited Cited as authority (rule) Watson Insurance Agency, Inc. v. Chipman-Union, Inc. (In Re Chipman-Union, Inc.)
Bankr. M.D. Ga. · 2005 · confidence medium
Witko *855 v. Menotte (In re Witko), 374 F.3d 1040, 1043 (11th Cir.2004).
cited Cited as authority (rule) Venn v. Sherman (In Re Sherman)
Bankr. N.D. Fla. · 2004 · confidence medium
“Pre-petition causes of action are part of the bankruptcy estate and post-petition causes of action are not.” Witko v. Menotte (In re Witko), 374 F.3d 1040, 1042 (11th Cir.2004).
discussed Cited "see" Osherow Ex Rel. Estate of Rhinesmith v. Wells Fargo Home Mortgage, Inc. (In Re Rhinesmith)
Bankr. W.D. Tex. · 2011 · signal: see · confidence high
See Witko v. Menotte (In re Witko), 374 F.3d 1040, 1042-44 (11th Cir.2004) (stating that “[p]re-petition causes of action are part of the bankruptcy estate and post-petition causes of action are not[,]” and concluding that because the debtor’s legal malpractice cause of action did not exist, and could not have even been predicted, at the time he filed his bankruptcy petition, that cause of action was not property of his bankruptcy estate); In re Patterson, 2008 WL 2276961 , at *3, 2008 Bankr.LEXIS *635 1778, at *8, (Bankr.N.D.Ohio June 3, 2008) (stating that “where all the events givin…
cited Cited "see" Google, Inc. v. Central Mfg. Inc.
7th Cir. · 2008 · signal: see · confidence high
See In re Witko, 374 F.3d 1040, 1042 (11th Cir.2004); In re Polis, 217 F.3d 899, 901-02 (7th Cir.2000); In re Forbes, 215 B.R. 183, 190 (B.A.P. 8th Cir.1997).
cited Cited "see" Google Incorporated v. Central Mfg Inc
7th Cir. · 2008 · signal: see · confidence high
See In re Witko, 374 F.3d 1040 , 1042 (11th Cir. 2004); In re Polis, 217 F.3d 899 , 901‐02 (7th Cir. 2000); In re Forbes, 215 B.R. 183, 190 (B.A.P. 8th Cir. 1997).
cited Cited "see" Google, Inc. v. Central Mfg. Inc.
7th Cir. · 2008 · signal: see · confidence high
See In re Witko, 374 F.3d 1040, 1042 (11th Cir.2004); In re Polis, 217 F.3d 899, 901-02 (7th Cir.2000); In re Forbes, 215 B.R. 183, 190 (B.A.P. 8th Cir.1997).
discussed Cited "see" Foreman v. J. Walter Construction Co. (In Re Foreman)
Bankr. S.D. Ga. · 2007 · signal: see · confidence high
See Witko v. Menotte (In re Witko), 374 F.3d 1040 (11th Cir.2004) (concluding that “[p]re-petition causes of action are part of the bankruptcy estate and post petition causes of action are not”); see also Telfair, 216 F.3d 1333 (adopting the estate transformation approach to post petition acquired property, and holding that after confirmation only the property necessary for the execution of the plan remains as property of the bankruptcy estate).
examined Cited "see" Ricky Wayne Bracewell v. Walter W. Kelley (8×) also: Cited "see, e.g."
11th Cir. · 2006 · signal: see · confidence high
See id. at 1042-43 .
cited Cited "see" Baillie Lumber Co. v. Bert F. Thompson
11th Cir. · 2004 · signal: see · confidence high
See In re Witko, 374 F.3d 1040 , 1042 (11th Cir.2004).
cited Cited "see" Baillie Lumber Co. v. Thompson
11th Cir. · 2004 · signal: see · confidence high
See In re Witko, 374 F.3d 1040, 1042 (11th Cir.2004).
discussed Cited "see, e.g." Sandra Dolores Cardenas and Steven Mario Cardenas (2×)
Bankr. N.D. Ga. · 2022 · signal: see also · confidence medium
“The question of whether a debtor's interest in property is property of the estate is a federal question, but the definition of property and issues about the nature and existence of the debtor's interest, are issues of state law.” Bracewell v. Kelly (In Re Bracewell), 454 F.3d 1234, 1243 (11th Cir. 2006); see also Witko v. Menotte (In re Witko), 374 F.3d 1040, 1043 (11th Cir. 2004) (noting that the Alvarez panel had not decided whether state law or federal law applied and stating, “[w]e now reiterate that federal law determines whether an interest is property of the bankruptcy estate.”…
discussed Cited "see, e.g." Oscar Calderon v. U.S. Bank National Association as Trustee for SG Mortgage Securities Trust 2006-FRE2 Asset Backed Certificates Series 2006-FRE2
11th Cir. · 2021 · signal: see also · confidence low
See 11 U.S.C. § 541 (a)(1); see also In re Witko, 374 F.3d 1040 , 1042 (11th Cir. 2004) (“The commencement of a voluntary bankruptcy case creates an estate generally consisting of the legal or equitable interests of the debtor in property as of the commencement of the case.” (quotation omitted)).
discussed Cited "see, e.g." Church Joint Venture, L.P. v. Earl Blasingame
6th Cir. · 2021 · signal: see, e.g. · confidence medium
See, e.g., Witko v. Menotte (In re Witko), 374 F.3d 1040, 1044 (11th Cir. 2004) (holding that a legal- malpractice claim was not part of the estate since harm from the attorney’s pre- petition failures did not occur until after filing the petition). 4 See Chartschlaa v. Nationwide Mut.
discussed Cited "see, e.g." Zenteno v. Bank of America, N.A.
M.D. Fla. · 2020 · signal: see also · confidence low
In re Bracewell, 454 F.3d 1234, 1237 (11th Cir. 2006) (“[T]he property of the debtor’s estate is property the debtor had when the bankruptcy case commences, not property he acquires thereafter.”); see also Witko v. Menotte (In re Witko), 374 F.3d 1040 , 1042–43 (11th Cir. 2004). “[T]he question of whether a debtor’s interest in property is property of the estate is a federal question, but the definition of property and issues about the nature and existence of the debtor’s interest, are issues of state law.” Bracewell, 454 F.3d at 1243 .
Retrieving the full opinion text from the archive…
In Re: Alfred J. WITKO, Debtor. Alfred J. Witko, Defendant-Appellant,
v.
Deborah C. Menotte, Trustee, Plaintiff-Appellee
03-16188.
Court of Appeals for the Eleventh Circuit.
Jun 25, 2004.
374 F.3d 1040
Kevin C. Gleason, Kevin C. Gleason, P.A., Ft. Lauderdale, FL, for Witko., Michael Richard Bakst, Adorno & Zed-er, PA, West Palm Beach, FL, for Plaintiff-Appellee.
Black, Marcus, Smith.
Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 88%
Citer courts: N.D. California (1)
SMITH, District Judge:

Alfred J. Witko (Witko) appeals the district court’s award of his legal malpractice claim to his bankruptcy estate. On appeal, Witko argues that he filed his bankruptcy petition before his legal malpractice cause of action accrued and that the legal malpractice, upon which he bases his claim, did not damage the bankruptcy estate. We conclude that Witko’s cause of action is not property of his estate and, accordingly, we reverse.

I.BACKGROUND

On September 8, 1999, Witko filed a petition for voluntary bankruptcy. On January 13, 2000, in a separate proceeding regarding Witko’s marital dissolution, a state trial court denied his request for alimony, which a state appellate court affirmed on December 15, 2000. Witko, thereafter, sued his divorce counsel for malpractice. The trustee of Witko’s bankruptcy estate, Deborah C. Menotte, intervened, seeking a determination that Wit-ko’s malpractice claim was estate property. The bankruptcy court held that Witko’s cause of action was property of the estate because “the better rule is that where pre-petition acts form part of a chain of events that lead to a post-petition ‘redressable harm,’ the cause of action is ‘sufficiently rooted in the debtor’s pre-petition past....’” The district court affirmed and Witko now appeals to this Court.

II.JURISDICTION

Witko’s appeal is timely and this Court has jurisdiction. 28 U.S.C. § 158(d).

III.STANDARD OF REVIEW

This Court reviews de novo the question of law whether a debtor’s interest is property of the bankruptcy estate. Bell-Tel Fed. Credit Union v. Kalter (In re Kalter), 292 F.3d 1350, 1352 (11th Cir.2002).

IV.ANALYSIS

Pre-petition causes of action are part of the bankruptcy estate and post-petition causes of action are not. Specifically, the debtor’s filing of a petition with the bankruptcy court commences a voluntary bankruptcy case. 11 U.S.C. § 301. The commencement of a voluntary bankruptcy case creates an estate generally consisting of the “legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). Although the estate is construed broadly, United States v. Whiting Pools, Inc., 462 U.S. 198, 205, 103 S.Ct. 2309, 2313, 76 L.Ed.2d 515 (1983), Congress expressly cautioned that the Bankruptcy Code “is not intended to expand the[*1043] debtor’s rights against others more than they exist at the commencement of the case.... [The trustee] could take no greater rights than the debtor himself had.” S.Rep. No. 95-989, at 82 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5868; H.R.Rep. No. 95-595, at 367-68 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6323.

In Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966), for example, the Supreme Court concluded that the debtor’s loss-carryback tax refund claims were property of the estate because they were “sufficiently rooted in the pre-bank-ruptcy past.” Id. at 380, 86 S.Ct. at 515. Although the Segal debtor could not claim the refunds until the tax year closed, which was post-petition, the predicates for receiving the refunds (payment of taxes in prior years and a net operating loss) occurred pre-petition. Id. The debtor had more than a mere hope that his losses might generate revenue in the future; he “possessed an existing interest at the time of filing,” even though his enjoyment of that interest was postponed. Drewes v. Vote (In re Vote), 276 F.3d 1024, 1026 (8th Cir.2002); see Sliney v. Battley (In re Schmitz), 270 F.3d 1254, 1258 (9th Cir. 2001). The Supreme Court did not allow the Segal trustee to assert more rights than the debtor had at the commencement of the case; it merely allowed the trustee to seek the interests existing, though still undetermined in quantity, at the time the debtor filed his petition.

The issue here is whether Witko’s legal malpractice claim is property of his bankruptcy estate. This' Court must determine whether the courts below correctly classified Witko’s cause of action as a pre-petition interest. As reflected by the parties’ briefing and oral arguments, recent cases arguably have clouded previous choice of law authority. See Johnson v. Alvarez (In re Alvarez), 224 F.3d 1273, 1276 (11th Cir.2000) (‘We note that the parties disagree about whether this question is governed by state law or federal bankruptcy law. We decline to decide the question of which law governs this determination, because in either event, we conclude that this legal malpractice claim is property of Alvarez’s bankruptcy estate.”) (footnotes omitted). We now reiterate that federal law determines whether an interest is property of the bankruptcy estate, Segal, 382 U.S. at 379, 86 S.Ct. at 515, and “[property interests are created and defined by state law. Unless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding.” Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979); see also Barnhill v. Johnson, 503 U.S. 393, 398, 112 S.Ct. 1386, 1389, 118 L.Ed.2d 39 (1992) (“In the absence of any controlling federal law, ‘property’ and ‘interests in property’ are creatures of state law.”); Charles R. Hall Motors, Inc. v. Lewis (In re Lewis), 137 F.3d 1280, 1283 (11th Cir.1998) (quoting Southtrust Bank of Ala. v. Thomas (In re Thomas), 883 F.2d 991, 995 (11th Cir.1989)) (“[T]he nature and existence of the debtor’s right to property is determined by looking at state law.”) (brackets omitted). State law thus controls Witko’s legal malpractice cause of action and determines whether that claim existed at the time Witko filed his bankruptcy petition.

Applying the appropriate state law, Witko’s legal malpractice cause of action did not exist until his alimony action concluded with an adverse outcome that was proximately caused by his attorney’s negligence. “Under Florida law, a cause of action for legal malpractice has three elements: (1) the attorney’s employment; (2) the attorney’s neglect of a reasonable[*1044] duty; and (3) the attorney’s negligence was the proximate cause of loss to the client.” In re Alvarez, 224 F.3d at 1276 (citing Steele v. Kehoe, 747 So.2d 931, 933 (Fla.1999)). Discussing the third element, the Florida Supreme Court unambiguously held that until the underlying action is concluded with an outcome adverse to the client (ie., harm), “a malpractice claim is hypothetical and damages are speculative.” Silvestrone v. Edell, 721 So.2d 1173, 1175 (Fla.1998); see Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061, 1065 (Fla.2001) (“[I]n the circumstances presented here, a negligence/malpractice cause of action accrues when the client incurs damages at the conclusion of the related or underlying judicial proceedings .... ”); see also Fla. Stat. § 95.031(1) (“A cause of action accrues when the last element constituting the cause of action occurs.”). The machinations of legal malpractice, especially the element requiring the conclusion of judicial proceedings, distinguish legal malpractice actions from virtually all other tort claims. Although proximate harm usually occurs in close temporal proximity to tortious conduct, legal malpractice harm often arises well after the attorney’s failures. Otherwise stated, it is unlikely that a car accident victim could file her bankruptcy petition between the causal act and her resulting harm.

Witko did not suffer any harm from the alleged legal malpractice prior to or contemporaneous with filing his bankruptcy petition. Witko filed his bankruptcy petition on September 8, 1999. The judicial proceedings underlying his malpractice claim did not conclude until months later on January 13, 2000 — at the earliest (the state appellate court did not affirm the trial court’s decision until December 15, 2000). These facts distinguish the instant matter from In re Alvarez, where a legal malpractice cause of action was found to be sufficiently rooted in the pre-bankruptcy past. In re Alvarez, 224 F.3d at 1279. There, the harm occurred at the same time Alvarez’s attorneys filed his bankruptcy petition. Id. (“Simultaneous with the filing, Alvarez suffered significant harm from the firm’s alleged negligence, ie. the loss of control of assets.”). When Witko filed his bankruptcy petition he had not yet suffered any harm. Witko’s malpractice cause of action was unknown, not even rising to a hope; the most pessimistic curmudgeon could not anticipate that, months later, Witko would lose his alimony claim due to his attorney’s malpractice. Witko’s legal malpractice cause of action did not exist at the time he filed his bankruptcy petition and, consequently, is not property of his bankruptcy estate.

V. CONCLUSION

For the reasons set forth above, we hold that Witko’s malpractice cause of action is not property of his bankruptcy estate. Accordingly, we reverse.

REVERSED.