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How Florida law differs from most others regarding last wills

On Behalf of | Jan 11, 2019 | Firm News

The Sunshine State remains one of the most popular destinations for retirees from all over the United States. Florida’s warm, humid climate can drastically improve the quality of life for those suffering from the pains of aging, such as arthritis.

Additionally, Florida has many active retirement communities and activities for older adults looking to divert themselves during retirement. From golfing to aquatic adventure opportunities, there are many benefits to moving to Florida for one’s golden years. However, those who stay in Florida until they die may encounter an unexpected complication.

The law in Florida about estate planning is substantially different than the law in almost every other state. Given the large number of estates from retirees that enter into the probate court system, it is no wonder that Florida has taken time to revisit standards accepted by other states. Most significantly, Florida is one of only two states that does not enforce no-contest or in terrorem clauses in a last will or estate plan.

Avoiding these clauses could protect seniors from financial abuse

The point of a no-contest clause is to ensure that a testator’s wishes get followed during the administration of their estate. By creating a financial penalty for anyone who would challenge the terms of the will or the administration of the estate, a no-contest clause helps protect the legacy of the deceased.

Unfortunately, those clauses can also have a chilling effect on valid, reasonable challenges brought by family members or heirs regarding late-in-life changes to an estate plan. Some unscrupulous people could target aging adults with significant assets in the hope of gaining an inheritance.

These individuals may become friends with older adults or me even attempt to seduce and marry them. They can then prompt their new friend or partner to add them to their last will and create a penalty if anyone in the family challenges that decision. By choosing not to enforce no-contest clauses, Florida makes it much more difficult for those who would abuse older adults to do so without consequence.

Family members can challenge a will, even if it has a no-contest clause

Just because the Florida courts won’t uphold a no-contest clause doesn’t mean individuals won’t still attempt to include them in their last wills. This could be because they don’t work with an attorney or because they use a will drafted in another state where such clauses are legally enforceable. The heirs or beneficiaries of an individual who passes away while a resident of Florida should know their rights as beneficiaries or heirs.

These rights include the right to bring a challenge if you have reason to believe that your loved one had diminished capacity at the time that they created their will or were experiencing undue influence by a third party. Even if the will includes a no-contest clause, Florida probate courts will not uphold that clause when you bring your challenge to court.