One of the most interesting things about estate planning that people often forget is that you can say whatever you want in your will. It can be the ultimate last word. A separate question is what effect, if any, your words may have on the disposition of your estate. Simply roasting someone who wronged you may not have any real effect, but what if you try to keep someone from challenging your will or trust? Check out our estate planning page to see what the various documents are and what they do.
So many of my clients have expressed a gut feeling that there will be a family member who wants to challenge their will or trust. The motivation for will contests take many forms, whether it is a spouse who may want to keep step children from getting any of their parent’s estate or children trying to sabotage each other’s inheritance.
What is an In Terrorem Clause?
In Florida a no contest clause, or in terrorem clause, is unenforceable. Florida Statutes 732.517 calls it a “Penalty clause for contest” and is a single sentence stating: “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.”
People have used many methods to threaten beneficiaries into not challenging a will. One of the most common ways would be to include language like this: “I leave $10,000.00 to Bobby Sue, unless she contests this instrument, my WIll. If she brings any judicial challenge to my will then she shall be entitled to $1.00.” The point would be to scare the beneficiary into taking what you give them or risk losing it all.
This tactic discouraged people from looking to the court to protect their rights. There is a strong public policy argument against this type of deterrent. We can opt into arbitration, but you’re still getting an independent 3rd party to determine the various rights involved.
How do I keep a beneficiary from challenging my will?
Handling this with adult children is pretty easy- either leave them something in clearly stated language, or leave them nothing. In Florida it is possible to leave nothing to your adult children. If you die without a will your adult children will likely be entitled to something. However, if you want to leave your entire estate to your second spouse, or to a significant other, or even just one of your children (as long as you have no spouse), that can usually be accomplished.
Preventing a spouse from receiving anything upon your death is a different story. Generally your spouse is entitled to a 30% share of your elective estate, also called the elective share. The elective estate can include non-probate assets. People who have significant wealth will often get a prenuptial agreement, and these agreements often include a waiver of the spousal elective share. In Florida, we assume people will take care of spouse. If you don’t want to take care of your spouse, your options are re either to have your spouse sign a waiver of his or her elective share or to get a divorce.
While threatening your spouse to prevent a will or trust challenge is not permitted, it may be possible to provide an alternative to the minimum elective share. For example in the relatively recent case, Dinkins v. Dinkins, the court said “This purpose is not thwarted by providing an optional alternative devise, because the beneficiary is free to reject it for any reason, including that it is less valuable than the statutory benefit. The purpose of the statutory benefit is satisfied, because the beneficiary has the ability to choose an option at least as valuable as the statutory minimum.” Dinkins v. Dinkins, 120 So. 3d 601, 603 (Fla. 5th Dist. Ct. App. 2013).
In instances where someone wants to leave less than everything to their spouse, I usually recommend leaving no less than the elective share. This way, even if they challenge the bequest, the result would be the same. A reasonable person would see a challenge as a waste of time and money for attorney’s fees.
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Whatever your choose to include in your will, you can’t threaten a beneficiary to keep them from challenging your will. If your loved one passed away and the will contains an in terrorem clause, or if you want to keep your spouse or children from challenging your will, contact us today to set up your free consultation. In a consultation with one of our attorneys you will be able to ask any questions about contesting a will or other probate litigation issues. If you are looking to keep a member of your family from receiving any of your property after your death, our attorneys may be able to propose some options that will allow you to achieve that objective, while also ensuring that the estate plan will have a high probability of being upheld in court.
Remember, nothing in our blog posts should be considered legal advice, and do not form an attorney-client relationship with our firm. You should always consult with an attorney before drafting or executing any document that will affect your rights.