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Florida Law Does Not Enforce No Contest Clauses

August 2, 2021 CSBB Blog

No contest clauses in Florida wills are unenforceable. Frequently, no contest clauses are referred to as in terrorem clauses.

Historically, many lawyers would draft wills with no contest clauses in order to discourage individuals from challenging the wills. A typical no contest clause would state that if a beneficiary under the will contested or challenged the will, that beneficiary would not receive anything. The intended result of these clauses would be to create an incentive to not disrupt the will’s admission to probate.

Fla. Stat. § 732.517, states:

Penalty clause for contest—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.

The Florida Trust Code codifies this prohibition on no contest clauses for trusts. Fla. Stat. § 736.1108(1) states:

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.

Surprisingly, no contest clauses are unenforceable—by statute—in only Florida and Indiana. Like Florida, Indiana also codified this prohibition for trusts. States that follow or have adopted the Uniform Probate Code, for example, state that no contest clause are enforceable, unless the contest is based on probable cause. See, Unif. Probate Code § 2-517. A smaller but still significant number of states enforce no contest clauses without regard to a good faith or probable cause limitation. Iowa, for example, requires both probable cause and good faith. See, e.g., Matter of Estate of Workman, 898 N.W.2d. 204 (Iowa Ct. App. 2017).

If you are contemplating filing a will or trust contest to challenge a document with a no contest clause, please call the probate litigators at (561) 626-2101 for a free, no-obligation consultation.

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