I recently discovered a new (to me) blog entitled the Pet Trust Law Blog, written by attorney Danny E. Meek. As you can tell from the title, Danny’s blog is dedicated to the issues of estate planning for people with pets — especially those who want to ensure that their pets are taken care of after their death.
He recently wrote an entry on “in terrorem” clauses in wills:
I spoke with a dog owner yesterday about some estate planning for her Boxer named Molly.
Molly’s owner, Mandy, told me that her only relative is a brother that she has not spoken with for years, and she is sure that no matter how she provides for Molly in her will, that the brother will contest the matter in the courts and try to take the money set aside for Molly.
We discussed the option of establishing a trust for Molly, but Mandy was not interested in that avenue.
I then suggested that the will could include an “in terrorem” clause.
“My brother may be a bad person, but he is certainly no terrorist,” exclaimed Mandy.
I smiled and explained that an “in terrorem” clause provides that if a person unsuccessfully challenges a provision in a will, then the challenger cannot receive any property under any other provision of the will.
So, if a court finds that Mandy’s will is otherwise valid, the clause providing monies for the care of Molly will be upheld, despite the protests of her brother.
Mandy’s desire to take care of her dog will be fulfilled.
In Terrorem clauses can be used by a testator wishing to prevent a will contest after their death. As Danny wrote, the clause serves as a disincentive for heirs to challenge the amount that they would otherwise receive. However, these clauses are invalid in the state of Florida. Section 732.517 of the Florida Statutes provides that 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.
So if you are a Florida resident, there are still methods to dissuade your potential heirs from challenging your will, and, if you believe such methods are necessary you should speak about those with your estate planning attorney. However an in terrorem clause is not one of them.