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No Contest Clauses in Will Contests in Florida

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Does Florida Recognize No Contest Clauses?

No.  Florida is one of the few states that does not recognize no contest clauses in will contests and trust challenges.

No Contest Clauses in Will  and Trust Contests

For will contests, Section 732.517 of the Florida Statutes provides as follows:

Penalty clause for contest.—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.

For trust challenges, Section 736.1108 of the Florida Statutes provides as follows:

Penalty clause for contest.—(1) A provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or instituting other proceedings relating to a trust estate or trust assets is unenforceable.(2) This section applies to trusts created on or after October 1, 1993. For purposes of this subsection, a revocable trust shall be treated as created when the right of revocation terminates.

Only Florida and Indiana make these no contest clauses completely unenforceable in will and trust proceedings.

Many Jurisdictions Permit No Contest Clauses

The Uniform Probate Code, adopted in approximately 22 states, provides that no-contest clauses are enforceable, unless the contest is based on probable cause.

SECTION 2-517. PENALTY CLAUSE FOR CONTEST. A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.

Approximately 14 states enforce no contest clauses without regard to probable cause or good faith, including New York, Ohio, Rhode Island and Virginia.

Florida has some of the most developed law regarding will and trust contests in the nation, given the significant aging population.  It is interesting that Florida is one of two states that make no contest clauses completely unenforceable in will and trust contests.

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