Are no contest clauses enforceable in Florida wills?

What is a “No Contest” or “In Terrorem” Clause in a Will or a Trust?

A “no contest” clause is a portion of a will or trust that punishes a beneficiary for contesting that same will or trust. Most commonly, a “no contest” clause cuts out anyone from the will if they sue to get more than what the will states. It is a way to make beneficiaries think twice before going to court and demanding more.

Consider the following example of a “no contest” clause: “I leave $10,000 to my son John, unless he challenges this Will in any way, in which case I leave nothing to John.” Notice that in this example, John is punished for contesting the will. If he challenges the will in any way, he receives $10,000 less than he otherwise would. This is a “no contest” clause. It discourages litigation by attempting to punish those beneficiaries that contest the estate plan.

Are “no contest” clauses enforceable in Florida?

No, a “no contest” clause is not enforceable in a Florida will or trust. Any clause that punishes a beneficiary for contesting a will or trust is disregarded by Florida probate courts.

In section 732.517 of the Florida Statutes, “no contest” clauses in wills are declared to be unenforceable. Section 736.1108 does the same for trusts. Thus, “no contest” clauses are not enforceable in Florida wills or trusts. This means that you can put a “no contest” clause into your will, but it won’t actually do anything or be upheld.

However, this does not mean that you cannot discourage litigation in your estate plan. It simply means that a “no contest” clause is probably not the best way to do that in Florida. But there may be other creative ways to avoid litigation in your estate planning. Finding a creative solution for you is one reason why a good estate planning attorney is so valuable. But keep in mind that you need an attorney that takes the time to listen to you, not someone that just churns out documents. Consider setting up a free consultation today.