Is a no-contest clause in a will enforceable in Florida?

A “no-contest” clause in a will is a provision typically used to scare off potential legal challenges by potential beneficiaries who feel they have not received their proper share of an estate. The provision often contains langauge similar to “anyone who challenges this will, shall forfeit any inheritance they may have under this will”. The reason for such clauses is that the testator wants his heirs to avoid any legal proceedings after his death and for his estate to be administered without any disruption.

However, both the Uniform Probate Code and the Florida Trust Code provide that a provision in a will that penalizes any interested person for contesting the will is unenforceable. Thus, these no-contest clauses, often termed “in terrorem” provisions, will not be recognized by a Florida judge in will contest proceedings.

What does all of this mean for you? If you feel cheated out of the share you received in a decedent’s will, you may contest this will despite there being a no-contest provision.

For example, your father, who was a resident of Fort Lauderdale, passes away and leaves in his will $100,000 to your brother and only $15,000 to you. Additionally, his will contains a no-contest provision. You believe your brother unduly influenced your father to gain a larger share in his will. In Florida, you may contest this will under the undue influence theory, or any other legal theory, and you will not forfeit any part of your inheritance by doing so.

If you or someone you know is interested in contesting a will to receive their proper share of an estate, it would be best to consult an attorney to accomplish that goal.

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