No Contest Clauses are Unenforceable in Florida
January 31, 2023
Sometimes testators include no contest clauses in their estate planning documents, thinking that these will help ensure their wishes will be honored after their death. No contest clauses, or “in terrorem clauses”, basically serve as a deterrent to a beneficiary of a will or trust, who might otherwise seek to challenge the terms of the will or trust, including bringing litigation regarding the will or trust. In some cases, the penalty stated in the document for bringing litigation may be as extreme as disinheritance from the will or trust altogether.
However, no contest clauses are unenforceable in the state of Florida. This means that the Florida court will essentially ignore these clauses in the will or trust, as if the clause does not exist.
As relates to wills, Florida Statute §732.517 states that:
A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.
As relates to trusts, Florida Statute §736.1108 states that:
(1) A provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or instituting other proceedings relating to a trust estate or trust assets is unenforceable.
(2) This section applies to trusts created on or after October 1, 1993. For purposes of this subsection, a revocable trust shall be treated as created when the right of revocation terminates.
Even though it is known that these clauses are unenforceable, some attorneys may still include no-contest clauses in their documents in an attempt to discourage frivolous litigation, and many clients may even want these clauses to be included despite being advised that the Florida court will not enforce them, in an effort to show the intent on the distribution of their assets.
Therefore, as a beneficiary of a Florida document that contains such a no-contest provision, you may challenge the document by way of litigation without the potential legal ramifications that may be stated in the document itself. That being said, it is wise to consult with your trusted Florida probate lawyer regarding the provisions in the document, determining your standing to proceed with any challenge of the document itself, and or answering your questions regarding your rights as relates to the document. Moreover, if you are in the process of making your estate plan, properly prepared estate documents can assure protection to your loved ones, hence the need to consult your trusted Florida probate lawyer.