Are No Contest Clauses Enforceable in Florida Wills and Trusts?

A no contest clause, sometimes called an in terrorem clause, is a provision that tries to take away or reduce a gift to a beneficiary who challenges the document. Florida addresses these clauses directly in its probate and trust codes.

For wills, section 732.517 covers penalties for contesting the will and for instituting other proceedings relating to the estate. The statute declares any such provision unenforceable.

For trusts, section 736.1108(1) covers penalties for contesting the trust instrument or for instituting other proceedings relating to a trust estate or trust assets. Under section 736.1108(2), the rule applies to trusts created on or after October 1, 1993. A revocable trust is treated as created when the right of revocation terminates.

These sections remove the penalty, not the other rules that govern a challenge. A contest still has to be based on recognized grounds and filed on time, and the timing rules for trusts are covered in when a revocable trust can be contested. Planning choices between the two documents are compared in the differences between a will and a trust.