Florida does not recognize “No Contest” clauses in wills.

Florida does not recognize “No Contest” clauses in wills.

Sometimes people want to put in a “no contest” or “in terrorem” clause in a Florida will. A no contest clause says that if someone who is a beneficiary under the will challenges the will or challenges some provision of a will, that person gets nothing; it is designed to intimidate someone into accepting a will.
Florida does not recognize these provisions in a will and explicitly declares them unenforceable.
Florida Statutes 732.517
Likewise, for those trusts created on or after Oct 1 1993, any clause penalizing someone for contesting the trust is likewise unenforceable; and the statute defines a revocable trust as being “created” on the date that it becomes irrevocable, so even if a revocable trust was created before that date, if it was still revocable on or after that date, it is still subject to the provision. Florida Statutes 736.1108
Nonetheless, I do occasionally see these clauses in Florida wills; usually the wills are drafted by a non lawyer; typically either a do it yourself will, or created by some sort of software , or a paralegal; very occasionally by a Florida attorney. I would suppose there might be an advantage to using such a clause, if the beneficiary doesn’t know enough to consult a lawyer they might be sufficiently intimidated by it to not question the clause, but personally I do not like putting what I know to be unenforceable clauses in a will.
Really, if you want to prevent someone from challenging a will in Florida, the only real way of doing it is to make sure you leave them enough money so they don’t feel compelled to challenge it.

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2 Responses to Florida does not recognize “No Contest” clauses in wills.

  1. L Hollis says:

    How does this apply for a trust created before Oct.1 1993?

    • admin says:

      The relevant statute says:
      736.1108 Penalty clause for contest.—
      (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.
      History.—s. 11, ch. 2006-217.

      So: it depends on the nature of the trust; if it was an irrevocable trust created prior to that date then the statute would apply. However, the overwhelming majority of trusts in Florida are “Revocable” trusts, meaning they do not become irrevocable until the death of one or more of the original grantors, depending on how the trust is drafted. If that is the case, then so long as the grantor died after Oct. 1, 1993, then this statute would apply. Basically, you should have a lawyer review the trust and the facts if you have a question.

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