No-Contest (In Terrorem) Clauses in Florida Wills and Trusts

Short answer: In Florida, no-contest clauses in trusts are unenforceable to the extent they penalize a beneficiary for challenging the trust — Florida Statutes § 736.1108 voids them outright. In wills, however, the rule is the opposite: § 732.517 makes a no-contest provision in a will unenforceable as well. This is one of the most misunderstood areas of Florida estate litigation, because both statutes reverse the “majority rule” that many other states follow and that older Florida case law once applied. This page is the firm's definitive resource on in terrorem clauses specifically. If your underlying goal is to attack a document, see our pages on contesting a will, how to contest a trust, or disinheritance; this page is about the clause itself and whether it can ever cost you your inheritance in Florida.

Reviewed by Albert Goodwin, Esq., a Florida estate and trust litigation attorney (Florida Bar and New York Bar). Last updated: 2024. This article is general information, not legal advice for your specific matter.

What a No-Contest Clause Actually Does

A no-contest clause — the traditional Latin term is in terrorem, meaning “in fear” — is drafting language that punishes a beneficiary for challenging the will or trust. The classic form provides that any beneficiary who contests the instrument “shall be treated as having predeceased” the testator or settlor, forfeiting their entire gift. The idea is to make a challenge so financially risky that a disgruntled heir will stay quiet rather than gamble a real inheritance on litigation.

That deterrent works in most states. It does not work in Florida. Florida is one of a small number of jurisdictions that has affirmatively decided, by statute, that beneficiaries should not be threatened out of the courthouse when they have genuine concerns about a document's validity. Understanding why Florida made that choice — and the narrow situations where a forfeiture provision can still have practical effect — is the whole point of this discussion.

The Governing Florida Statutes

Two statutes control, and they say essentially the same thing for their respective instruments:

• Wills — Fla. Stat. § 732.517: “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.”
• Trusts — Fla. Stat. § 736.1108(1): “A provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or instituting other proceedings relating to the trust estate is unenforceable.”

Both statutes apply to instruments that became irrevocable on or after October 1, 1993 (the will provision was enacted as part of the 1990s revisions to the Florida Probate Code and the trust provision arrived with the Florida Trust Code effective July 1, 2007). The practical takeaway is blunt: if a Florida will or trust contains a no-contest clause, and the beneficiary in fact challenges the document, Florida courts will simply disregard the clause. The beneficiary does not forfeit anything by contesting.

Wills vs. Trusts: A Side-by-Side Comparison

Notice how this reverses what many national articles and out-of-state forms assume. If you read a template that says “Florida enforces no-contest clauses subject to a probable-cause exception,” that is outdated. That was arguably the common-law posture before the statutes, but Florida's legislature went further than the probable-cause compromise and voided the clauses entirely.

The Case Law: How Florida Courts Got Here

Before the modern statutes, Florida courts recognized no-contest clauses at common law but applied a good-faith / probable-cause limitation. Older decisions such as Barry v. American Security & Trust Co. and mid-century probate opinions treated a forfeiture clause as valid unless the contestant had reasonable grounds. The Florida Supreme Court's decision in Barry v. Amerikaner-line cases and subsequent appellate opinions reflected discomfort with using inheritance as a weapon to silence legitimate objections.

The legislature ultimately resolved the tension by statute rather than leaving it to case-by-case “probable cause” litigation. Florida appellate courts have since applied §§ 732.517 and 736.1108 to strike forfeiture provisions. Because the statutes are unambiguous, most modern disputes are not about whether the clause is enforceable — it isn't — but about collateral issues: whether a settlement agreement's own no-contest terms are binding (contractual, not statutory), whether attorney's fees are recoverable, and whether a particular filing even counts as a “contest” for purposes of other doctrines. When you evaluate a case, the correct question is not “did I have probable cause?” but “is this a statutory no-contest clause the court must ignore, or a negotiated contractual term I agreed to?”

Worked Hypotheticals

These illustrations are hypothetical and for explanation only; they are not case results.

Hypothetical 1 — The disinherited daughter

A Coral Gables widow signs a trust six weeks before her death, cutting out her daughter and adding a new caregiver. The trust contains a clause stating any contesting beneficiary forfeits their share. The daughter sues, alleging undue influence and lack of capacity. Result under Florida law: the forfeiture clause is unenforceable under § 736.1108. The daughter risks litigation costs, but she does not risk losing whatever the trust gave her simply by filing. Whether she wins depends on the merits — a separate question addressed on our how to contest a trust page.

Hypothetical 2 — The out-of-state estate plan

A New York resident with a Florida vacation condo dies with a will drafted in New York containing an enforceable-in-New-York no-contest clause. When the condo goes through ancillary probate in Miami-Dade, a Florida beneficiary challenges the will. Choice-of-law questions arise, but for Florida-situs property administered under Florida probate, § 732.517 generally controls the enforceability of the penalty as to the Florida proceeding.

Hypothetical 3 — The accounting objection

A trust beneficiary demands and then objects to a trustee's accounting, alleging self-dealing. The trust has a no-contest clause. Even setting aside the statute, an action to compel or object to an accounting or to enforce fiduciary duties is generally not a “contest” of the instrument's validity — it is enforcement of the trust, not an attack on it. See our page on contested accountings and breach of fiduciary duty.

What Would Count as a “Contest”?

Because the statutes void the penalty anyway, the “what triggers forfeiture” question is far less consequential in Florida than in other states. Still, the category matters for related doctrines (like fee-shifting and settlement drafting). Actions that attack the instrument's validity are the core of a contest:

• Petitions to invalidate a will or trust for undue influence, incapacity, fraud, duress, or forgery;
• Challenges to a codicil or trust amendment;
• Actions asserting the instrument was revoked or improperly executed under Florida's execution formalities.

By contrast, these are typically not validity contests: compelling an accounting, seeking construction of an ambiguous term, enforcing an elective share, asserting a homestead right, or seeking removal of a fiduciary for misconduct. Even so, if you are a beneficiary anywhere near an adversarial filing, get advice first — the analysis is fact-specific and interacts with settlement language you may sign.

Drafting: Why We Rarely Rely on These Clauses in Florida

Estate planners moving to Florida from other states often carry a no-contest clause into their forms out of habit. In our practice we treat these clauses realistically: in a Florida-governed instrument, a boilerplate in terrorem clause is essentially decorative. It may still serve a mild psychological deterrent for an unrepresented heir who does not know the law, but it will not actually be enforced. Sample language you will still see in Florida documents:

“If any beneficiary under this trust contests the validity of this instrument or any of its provisions, that beneficiary shall be deemed to have predeceased the settlor and shall take nothing hereunder.”

Under § 736.1108, that sentence is unenforceable. If deterrence is truly the goal, more durable strategies include: leaving a meaningful (not token) gift so a challenger has something real to weigh; building a clean, well-documented record of capacity and voluntariness at execution; using a lifetime, funded revocable trust with contemporaneous physician letters; and, where appropriate, a contractual settlement or family agreement with its own bargained-for no-litigation terms — which are enforced as contract, not as a statutory forfeiture clause. See our overviews of estate planning and estate mediation.

Common Drafting Pitfalls

• Assuming out-of-state enforceability applies. A clause valid in New York or California is void in a Florida instrument.
• Relying on the clause instead of a defensible record. The real protection against a contest is evidence of capacity and independence, not a forfeiture threat.
• Confusing statutory void with contractual bargains. A negotiated release in a settlement can bind; a unilateral clause in the will cannot.
• Token bequests. A clause aimed at a beneficiary who receives little or nothing has no teeth even where enforceable.

How Our Miami Practice Handles These Disputes

We litigate will and trust disputes throughout Miami-Dade County and South Florida, both for beneficiaries deciding whether it is safe to challenge a document containing a no-contest clause and for fiduciaries and drafters defending an estate plan. When a client comes to us worried that filing a contest will cost them their inheritance, our first step is to identify which statute governs the instrument and confirm that the forfeiture language is, in fact, unenforceable — which in a Florida-governed will or trust it almost always is. From there the analysis shifts to the merits of the underlying challenge and the cost/fee exposure, which is where the real risk actually lives. For defense-side matters, see defending trust contests and defending a contested will.

Frequently Asked Questions

Are no-contest clauses enforceable in Florida?

No. Fla. Stat. § 732.517 (wills) and § 736.1108 (trusts) both make a provision that penalizes a beneficiary for contesting the instrument unenforceable. Florida courts will disregard the clause.

Do I need “probable cause” to avoid forfeiture in Florida?

No. Unlike many states that void a no-contest clause only when the contestant had probable cause, Florida voids the clause entirely. Probable cause is not required to escape the forfeiture, though it remains relevant to the merits and to potential fee awards.

Will objecting to an accounting trigger a no-contest clause?

Generally not. Compelling or objecting to a fiduciary accounting, or enforcing fiduciary duties, is enforcement of the trust or estate rather than a challenge to the validity of the instrument. It is also academic in Florida because the forfeiture provision is unenforceable regardless.

What if the will was signed in another state?

Choice-of-law issues can arise, but for property administered through Florida probate or a Florida-governed trust, Florida's anti-forfeiture statutes generally control the enforceability of the penalty. Get case-specific advice.

Can a settlement agreement create an enforceable no-litigation term?

Yes. A negotiated, bargained-for release in a settlement or family agreement is enforced as a contract and is different from a unilateral no-contest clause voided by statute.

Talk to a Miami Estate Litigation Attorney

Whether you are a beneficiary trying to decide if it is safe to challenge a Florida will or trust, or a fiduciary or planner concerned about a forfeiture provision, the Law Offices of Albert Goodwin, PA can evaluate the governing statute, the merits, and your cost exposure before you act. We handle will contests, trust contests, and related estate litigation across Miami-Dade County and South Florida.

Call 786-522-1411 or email [email protected]. Our office is located at 121 Alhambra Plz #1000, Coral Gables, FL 33134.