When drafting a Last Will and Testament, some people leave gifts or inheritances with very specific conditions or instructions. Sometimes, people even try to influence or control their beneficiaries’ life decisions by including certain no-contest clauses in their Wills.
What is a no-contest clause?
You can include a no-contest clause (also known as an in terrorem clause) in your Last Will or Living Trust. Generally, this type of clause stipulates that if an heir tries to contest any part of your Will or trust, they will forfeit their inheritance.
Some people use them as a way of controlling the lives of their beneficiaries. However, the main purpose of a no-contest clause is to stop your beneficiaries from fighting over your estate after you pass away. The possibility of losing one’s inheritance often persuades heirs to accept your last wishes as written instead of fighting for more assets or money.
Are no-contest clauses in Wills enforceable?
Typically, courts enforce no-contest clauses unless the contesting beneficiary has probable cause for disputing it. Probable cause can exist in situations where the conditions of inheritance are unreasonable, such as trying to control an heir’s physical appearance.
However, a reasonable condition, such as an heir having to wait until they are 21 years old to receive their inheritance, is most often enforceable.
That being said, there are still differences from state to state as to how these clauses are accepted or struck down.
For example, let’s say a father who lives in Florida leaves his entire estate to his daughter and includes a condition that she divorces her husband and a no-contest clause.
Initially, his daughter might think she’s out of luck. However, what she doesn’t know is that Florida is one of the states that doesn’t enforce no-contest clauses in wills and trusts. So, it’s likely that she could take her complaint to court without losing her inheritance.
Also, if she lived in another state where the rules of enforcement differ, she might still be able to contest the Will. In some states, courts don’t enforce conditions that restrain a marriage, even if there is a no-contest clause.
Should I include a no-contest clause in my Will?
If you’re going to include a no-contest clause in your Will, make sure you’re doing it for the right reason. Don’t use a no-contest clause to attempt to control a family member’s life or choices.
A no-contest clause should make the distribution of your assets easier and quicker. If properly executed, this clause can protect your loved ones from legal disputes and ensure your wishes are honored.
