Do you need to worry about a no contest will clause in Florida?

| May 22, 2018 | Firm News

When your aging loved ones pass away, there are many things to occupy your mind. There’s the grief of losing someone you care for, as well as all the practical aspects of handling an estate. Sometimes, there’s also the shock of realizing that a parent, grandparent or other family member altered his or her will in one’s last days, reducing or eliminating the inheritance for family members.

In that situation, it’s only natural to wonder about the validity of those changes. This is particularly true if someone disinherited children in favor of a late-in-life spouse or perhaps a caregiver, such as a live-in nurse. Those changes could be a sign of undue influence or even duress experienced by your loved one. You may feel like challenging the will in probate. However, the presence of a no contest clause could leave you worried about losing your inheritance.

What is a no contest clause?

If you aren’t familiar with the term, a no contest clause is simply language added to a last will, trust or estate plan to prevent heirs and beneficiaries from challenging the wishes of the testator. Essentially, these clauses allow someone to create a penalty for any heirs who drag the estate into probate by challenging the contents of the estate plan or last will.

The penalties assigned can vary from person to person. Some people may reduce the inheritance due to the person bringing the challenge. Other people decide that the penalty should be full disinheritance for that person. Regardless of the penalty, the motivation for this kind of clause is typically to prevent an heir, beneficiary or family member from challenging an estate and wasting resources on the probate process or to prevent fighting over assets.

Florida law protects elderly citizens from undue influence

Florida is well-known as one of the most popular retirement destinations in the country. The warm average temperature makes it an ideal location for people dealing with the aches and pains of old age. However, the large number of retirees living in Florida also creates unique concerns for lawmakers. Unlike almost every other state, Florida courts will not uphold a no contest clause in someone’s last will, trust or estate plan.

The reasoning behind this difference is simple. With so many aging people whose estates wind up in probate in Florida, the state needs a more measured and careful approach. The potential for elder abuse, especially financial abuse and the emotional abuse one experiences when alienated from loved ones by a caretaker, is a serious concern. By refusing to uphold no contest clauses, Florida probate courts actually protect the intentions, wishes and plans of their citizens.

After all, if there is no evidence of any wrongdoing, the courts likely won’t alter the estate despite the challenge. Allowing family members to contest a last will reduces the incentive for those who would prey on the aging and elderly for their own financial gain.