Can I Use a “Penalty Clause” to Prevent a Contest to My Florida Will or Trust?

Creating a trust or will allows you to direct the disposition of your assets upon your death. A common benefit of such estate planning is that it minimizes the potential for conflicts, and potentially litigation, among family members who believe they have a valid claim to a deceased loved one’s property. That said, some people are still afraid that a disgruntled relative may challenge or contest their will or trust in court when the time comes.

Why Florida Does Not Enforce No-Contest Clauses

One method that is sometimes employed to try and preempt such legal challenges is by including a penalty or “no contest” clause in the will or trust. For example, a person might include a clause in their will that provides that if any beneficiary takes any legal action to try and invalidate all or part of the will, they will lose their right to inherit under said will. Alternatively, some no-contest clauses simply reduce the challenger’s share of the estate to a token amount like $1.

However, if you are a Florida resident making a will or trust under the laws of this state, then including a penalty or no-contest clause is pointless. Section 732.517 of the Florida Statutes provides that any “provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.” Similarly, Section 736.1108 declares any penalty provision in a trust unenforceable.

As the Florida Fifth Court of Appeal explained in a 2013 decision, Dinkins v. Dinkins, the reason Florida bars enforcement of these kinds of penalty clauses is that the ability to contest a potentially invalid will or trust “is essential to the integrity of the estate disposition process, because beneficiaries must be able to obtain, and courts must be able to provide, a determination of the instrument’s validity.”

How to Avoid Will or Trust Contests

The reality is that challenges to wills or trusts in Florida are rare. The reason for this is that a beneficiary cannot bring a legal contest simply because they are dissatisfied with their inheritance. Nor do courts care about what is a “fair” distribution of property under a will or trust.

To the contrary, Florida law only provides limited grounds for contesting a will or trust. These grounds include improper execution of the will, lack of mental capacity by the testator (or trust settlor), and forgery. Additionally, the person contesting the will must establish that they have legal standing to do so. This usually means an actual beneficiary under the will or trust or someone who would stand to benefit if the will or trust is declared invalid.

Contact a Bradenton Wills & Probate Lawyer Today

The best way to avoid potential litigation over your future estate is to be proactive in making plans while you are still alive. Our Bradenton wills and probate lawyers can help. Contact Suncoast Civil Law at 941-366-1800 to schedule a consultation today.

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