Are “No Contest” Clauses Valid in Florida?

Fri Feb 28, 2020 | Wills |

Challenging a will is a big decision that shouldn’t be taken lightly. In addition to the time and money it takes to challenge a will, it can lead to a great deal of friction between the heirs. In an attempt to prevent challenges, many wills and trusts include a “no contest” clause. If you think you need to challenge a will or estate that contains a no-contest clause, you should contact a Boca Raton estate litigation attorney.

What is a “No Contest” Clause?

No-contest clauses have been in use for centuries and are found in many wills. A no-contest clause is a provision that states that a beneficiary who challenges a will and is unsuccessful will not receive anything from the will. 

For example, let’s say your grandfather’s will bequests to you a significant amount of cash and investments. However, you were told that you would inherit some real estate, but you believe that another family member had him change his will while he was suffering from dementia. If you challenged that disposition of his real estate in the will and lost, you would not only lose your claim to any real estate but also your claim to the cash and other investments. 

While this seems incredibly unfair, the intent behind no-contest is intended to discourage frivolous estate litigation that bog down probate courts and result in needless expenses. 

Are They Enforceable?

Because they can be so unfair, Florida has decided that no-contest clauses are invalid and should be unenforceable. Florida law expressly 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.” Note that Florida also has a nearly identical statute that prohibits no-contest clauses in trust agreements as well. An estate litigation attorney can help you through the process of challenging the will or trust. 

If They Are Invalid in Florida, Why Is There a No-Contest Clause in This Will?

Despite the fact that no-contest clauses are invalid in Florida, it is not common to come across them in many wills and trusts. There are a couple of different reasons for this. 

The first reason is that the will may have been drafted in a state other than Florida. Wills are executed in the state where the decedent dies. It’s not uncommon for a decedent to draft a will, move to another state years later, and never update their estate plan. As a result, the will may have been drafted in a state where no-contest clauses are enforceable. Regardless, the no-contest clause will still be unenforceable in Florida. 

The second reason is that the person who drafted the will may have included it knowing that it was enforceable, but hoping that it would still discourage people from challenging the will who may not know better. This is why it’s always a good idea to speak with a Boca Raton estate litigation attorney if you think you have been treated unfairly in someone’s will. 

Contact a Boca Raton Estate Litigation Attorney Today

Challenging a will or trust is a difficult process that requires knowledge of the probate process and how the law will apply to your case. If you think you have a claim, we recommend that you speak with an attorney as soon as possible. Call Ellis Law Group at 561-336-6358 or contact us online to schedule an appointment with our Boca Raton estate litigation lawyer today.