What is the no-contest clause?

A no contest clause in a will or a trust simply says that if a beneficiary challenges that will or trust, that particular beneficiary will be disinherited completely. A different term for this type of clause is an in terrorem clause.

The purpose of these clauses is to threaten and intimidate potential beneficiaries into not contesting the will. Many people fear and seek to avoid the possibility of a will contest, which can drag on for multiple years. Defending against these suits can use of much of an estate’s assets. The idea of including a no contest clause is to scare the beneficiary into taking what is left to them in the will and not risk losing it all by contesting the will.

Florida does not recognize or enforce these no contest clauses in wills. This is a matter of public policy. Section 732.517 of the Florida Statutes 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.” A separate statute invalidates no contest clauses in trusts.

Nevertheless, these no contest clauses still occasionally appear in Florida wills, even though they are unenforceable. Sometimes these are added by attorneys who know that the clauses are unenforceable, but who know that the existence of the clause might nevertheless prevent a will contest by those beneficiaries who do not know that they are unenforceable. At other times, these clauses appear in Florida wills because the will has been prepared by a layperson either drafting it themselves or using legal form creation software.

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