Many people are familiar with so‑called “no contest” or in terrorem clauses—provisions in a will or trust that attempt to discourage lawsuits by threatening to cut off a beneficiary who challenges the document. While these clauses are enforceable in some states, Florida takes a very different approach.

The bottom line is: no contest clauses are unenforceable in Florida. Including one in a Florida will or trust does not prevent a challenge and does not penalize a beneficiary who contests the document.

What Florida Law Says

Florida statutes are clear and leave little room for interpretation on this topic:

Wills

Florida Statutes § 732.517 provides that any provision in a will that penalizes a person for contesting the will or bringing related proceedings is unenforceable.

Trusts

Florida Statutes § 736.1108 provides that any provision in a trust that penalizes a person for contesting the trust or bringing related proceedings is unenforceable.

In simple terms, Florida courts will not enforce any clause that tries to punish someone for challenging a will or trust, regardless of the circumstances.

How Florida Differs from Other States

In some states, courts may enforce no contest clauses unless the challenger had “probable cause” or acted in “good faith.” Florida does not follow this approach.

• Florida courts do not weigh whether a challenge was reasonable or well‑intentioned.
• If a clause is triggered by a contest or related legal action, it is void as a matter of law.

These Clauses Still Appear in Florida Documents – But Why?

Despite being unenforceable, no contest clauses sometimes still show up in Florida estate planning documents for a few common reasons:

1. Prior Planning in Other States

Clients who moved to Florida or previously planned in states like New York or California often expect these clauses to work here. While attorneys typically explain the Florida rule, some older or imported documents still contain it.

2. Perceived Deterrent Effect

Some believe the clause might discourage a lawsuit simply because beneficiaries do not realize it is unenforceable. This approach is increasingly disfavored and can create confusion or false expectations if not carefully explained.

3. Out‑of‑State or Legacy Documents

Documents drafted elsewhere and later adapted for Florida sometimes retain no contest language even though it has no legal effect under Florida law.

Important Risk for Out‑of‑State Attorneys

When a client is a Florida resident or owns Florida‑based assets:

• An attorney not licensed in Florida who drafts a Florida will may face unauthorized practice of law (UPL) concerns.
• Even if the document is technically valid, unfamiliarity with Florida‑specific rules—such as homestead restrictions, elective share rights, and personal representative qualifications—can lead to costly probate disputes and malpractice exposure.

Best Practices for Florida Clients

• Florida law should control Florida estate plans.
• Out‑of‑state attorneys should work with a Florida‑licensed attorney to draft or review the documents.
• Collaboration ensures compliance with Florida statutes and avoids unintended legal and practical problems.
• If a client wishes to continue working with a long‑time out‑of‑state advisor, coordination with Florida counsel is strongly recommended.

Key Takeaway

Including a no contest clause in a Florida will or trust does not provide protection and does not prevent litigation. Effective Florida estate planning relies on proper drafting, compliance with Florida law, and sound planning strategies—not unenforceable penalties.

If you have questions about how Florida law affects your estate plan, we encourage you to seek Florida‑specific legal advice.

Howard S. Krooks is Chair of the Elder Law Group within Cozen O’Connor’s Private Client Services Group. Mr. Krooks is a Certified Elder Law Attorney by the National Elder Law Foundation as accredited by the American Bar Association. He is a past President of the National Academy of Elder Law Attorneys (NAELA), a Past Chair of the New York State Bar Association Elder Law Section, and a Past Chair of the Florida Bar Elder Law Section.