Posted By Larry Tolchinsky on September 9, 2014
In Florida, can you block someone from challenging your will with a No Contest clause?
In Florida, as in all other states, there are laws on the books that establish how your property will be distributed should you die without a will, or if you die without a valid one. So, the smart thing to do in order to make sure that your real estate and personal belongings are inherited by the people you wish, and not the ones that the state legislature has assigned as heirs, is to make a valid Last Will and Testament.
This isn’t that hard to do. A simple Last Will and Testament can be drafted quickly and inexpensively by a Florida estate planning lawyer. If you don’t have a complicated web of assets (like holdings in different states or countries; antiques or collectibles with changing market values; etc.) then finalizing a will to protect your desires and intentions is easy enough.
When you write your will, then you get to decide who gets what. You can be as detailed as you want. If you want you Aunt Midge to get your antique wall clock, then you can specific this bequest. If you want to make sure that your son and daughter have sufficient funds for their college education, then you can explain in your Will how this will be funded.
However, not all family dynamics are peaceful and united. You may have a valid concern that your desires and decisions on who gets what of your property may be challenged after your passing. Maybe you worry that your children from your first marriage will be unhappy with your decisions on leaving the family home to your second wife. Maybe your new spouse will be concerned that your caretaker should not receive such a large bequest, despite your intent to reward them for their compassion in your final illness.
Many people assume they can control any challenges to their will easily enough by including something called a “no contest clause.” It’s a will provision that has been used in every state and it’s been around for many years.
What is a No Contest Clause?
A “no contest” clause is language in a will that states that a person who tries to contest the will – or to challenge the validity of that will on its face – will be rewarded with being totally disinherited or blocked from receiving anything from the decedent. In other words, anyone who fights the will loses any inheritance at all according to the terms of the will.
Some states may find no contest clauses to be acceptable. Florida does not. Florida Statute 732.517 provides:
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.
Why Can’t You Use a No Contest Clause in Florida?
Florida law has found that no contest clauses in wills are all too often a bar to justice, keeping courts from hearing valid arguments against wills. As one Florida court has explained:
Under a no contest clause, in order to receive the devise, the beneficiary must forfeit the right to contest the instrument. But that right is essential to the integrity of the estate disposition process, because beneficiaries must be able to obtain, and courts must be able to provide, a determination of the instrument’s validity. …. Thus, a beneficiary cannot be forced to choose between the right to contest an instrument and the right to take under it, and this public policy is codified in section 736.1108(1) and its probate analogue, section 732.517.
What Can You Do Instead of a Non Contest Clause?
If you wish to insure that your desires are respected after your passing, then there are legal ways to do this as part of your overall estate planning. A Florida estate planning attorney can help you memorize your wishes and plan for your property so that everything you own transfers smoothly and efficiently to those to whom you want it to go — and this can be done at a reasonable cost.