Trusts and wills: can I include a no contest clause?

Trusts and wills: can I include a no contest clause?

On Behalf of | Feb 15, 2022 | Trusts, Wills |

The last thing someone who is doing their estate planning wants is for the product of their efforts to become embroiled in litigation. You structure your trust or your will to ensure your beneficiaries are provided for in the manner you think is best. And you may wonder if including a no contest clause can help avoid a fight between those beneficiaries.

In terrorem

No contest clauses have been around for a very long time, more formally known as ‘in terrorem’ clauses. They can be worded differently for different circumstances, but they usually state that, if a beneficiary challenges all or a part of the trust or will in which they are named, that beneficiary is automatically excluded from the trust or will. Hence the name ‘in terrorem’ – the clause is intended to scare a beneficiary and make them think twice before bringing a contest.

What does Florida law say?

Different states handle no contest clauses in different ways. Some uphold them quite often while others treat them on a case-by-case basis. Florida is unique in this respect; it is the only state which bars the use of no contest clauses entirely. Florida Statue 732.517 prohibits their use in wills and Florida Statute 736.1108 prohibits their use in trusts.

This doesn’t necessarily mean you can’t include a no contest clause in your trust or will, if for no other reason than to make your intentions clear to your beneficiaries. But it does mean that such a clause will not be enforced by Florida courts. In the absence of such a straightforward remedy to potential litigation, you’ll likely want to seek the assistance of a professional who is experienced in estate planning. They may be able to help you devise alternative strategies to achieve the same, or similar, results.