Florida Statute 736.1108
“Penalty clause for contest”
What it means
A trust provision that penalizes an interested person for contesting the trust instrument — or for instituting other proceedings relating to the trust estate or trust assets — is unenforceable in Florida. Whatever the instrument threatens, usually forfeiting the challenger's share, the clause has no legal effect. Florida takes the same position for wills in §732.517.
The section applies to trusts created on or after October 1, 1993, and a revocable trust counts as created when the right of revocation terminates — for most revocable trusts, at the settlor's death. In-terrorem clauses still appear in Florida documents; they simply do not do anything.
- A provision penalizing an interested person for contesting the trust instrument is unenforceable.
- The ban also covers penalties for instituting other proceedings relating to the trust estate or trust assets.
- Applies to trusts created on or after October 1, 1993.
- A revocable trust is treated as created when the right of revocation terminates, not when it was signed.
- Wills get the identical rule in §732.517.
How it plays out
Clients regularly arrive holding a trust with a no-contest clause and a real question they are afraid to ask. The first thing we tell them: in Florida the clause is unenforceable — a beneficiary can challenge the trust, lose, and keep whatever the instrument gives them. The flip side comes up in planning. A no-contest clause is not a substitute for the hard work; clean execution, documented capacity, and honest conversations do what the clause cannot.
Where this shows up
Pages on this site where § 736.1108 does real work:
Questions people ask
