The Validity of the No Contest Clause in the Last Will and Testament

If you are considering drafting a will, the “No Contest Clause” may tempt you. Most people, however, don’t realize that the no contest clause is invalid in most states. A no contest clause is a provision drafted into estate planning which threatens disinheritance and/or litigation to any beneficiary who challenges the validity of the will and testament, the specific distributions, and/or any other term in the last will and testament.

It is important to know that each state has their own specific rules regarding the validity of the no contest clause. For instance, California allows limited validity. In California, no-contest clauses will only divest a party that unsuccessfully contests a last will and testament if the Court determines that the party brought the action without probable cause. In Florida and New Jersey, no contest clauses are invalid and unenforceable. Massachusetts, on the other hand, allows such penalty clause. New York also gives such clauses full effect. In Texas, the challenge must be made in good faith.

If you are interested in adding a no contest clause to your estate plan, you must first check if the clause is valid in your state. If the clause is valid, you must still determine its enforceability (limited or complete). The clause should then be drafted according to the state law.

Contact Capital Planning Law, PLLC for your complimentary consultation to discuss your estate planning, business law, probate, guardianship and/or real estate needs.