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The clause type that Florida probate courts simply won’t enforce

On Behalf of | Sep 27, 2023 | Estate Administration

Florida has a very high percentage of retirees among its residents. Quite a few older adults are snowbirds who spend part of the year in Florida and the remainder of the year in another state. Many others move full-time to Florida to enjoy their retirements in a state with a climate that doesn’t exacerbate their age-related health issues.

Those who move to Florida for their golden years don’t just need to update their address with their loved ones. They also probably need to update their estate plans. Anyone who is a resident of Florida will need to ensure that their estate planning documents comply with Florida law. There’s a clause that people often add to their wills when they live in other states that the Florida probate courts won’t uphold.

No-contest clauses aren’t enforceable in Florida

Many testators will add no-contest causes to their wills to prevent their family members from contesting their wishes after they die. Some people refer to a no-contest clause as a penalty clause or an in terrorem clause. Whatever name someone uses for a clause intended to diminish or eliminate someone’s inheritance after a frivolous probate challenge, the clause will not be enforceable in Florida probate court.

State law actually prevents the enforcement of penalty clauses, a practice that diverges from what happens in most other states. Families can always raise questions about the possibility of undue influence or fraud that may have undermined their loved one’s wishes without putting their own inheritance rights at risk.

Older adults moving to Florida may, therefore, need to revise estate planning paperwork to better comply with the rules in the Sunshine State. Occasionally updating estate planning paperwork can help ensure someone derives as much protection as possible from their approach.