Fla. Stat. § 736.1108 - Commentary to Florida Trust Code

Legal Commentary on Fla. Stat. § 736.1108

Fla. Stat. § 736.1108 takes away a trustee’s ability to enforce a “no contest” or “in terrorem” clause. A trustee cannot punish a beneficiary for suing over the trust. This includes suits which question the validity of the trust instrument itself. Any such clause in trust document is unenforceable.

The Fifth District Court of Appeal limited the application of this statute section in Dinkins v. Dinkins, holding that a trust provision which provided an alternative to the statutory elective share was not an in terrorem clause and thus not rendered unenforceable by Fla. Stat. § 736.1108. 20 So. 3d 601 (Fla. 5th DCA 2013). The Court explained, “Under a no contest clause, in order to receive the devise, the beneficiary must forfeit the right to contest the instrument."

Fla. Stat. § 736.1108 is the Florida Trust Code’s version of Fla. Stat. § 732.517, the portion of the probate code which makes the same prohibition in wills.

Text of Fla. Stat. § 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 of Fla. Stat. § 736.1108

Fla. Stat. § 736.1108 became law on July 1, 2007, as part of the Florida Trust Code. It has not been amended or revised since that date. However, a prior version appeared in Fla. Stat. § 737.207 as part of the former Chapter 737 of the Florida Statutes:

Penalty clause for contest.--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.

The language in 737.207 is clearly influenced by Fla. Stat. § 732.517. Indeed, much of the language appears to have been lifted word or word. The Fifth District Court of Appeal referred to Fla. Stat. § 732.517 as being the “probate analogue” of Fla. Stat. § 736.1108. Dinkins v. Dinkins, 20 So. 3d 601 (Fla. 5th DCA 2013).

This article is part of the PTM Legal Commentary to the Florida Trust Code. Click here to navigate through the entire commentary.