Florida Statute 736.1108
“Penalty clause for contest”
What it means
A provision in a trust instrument that purports to penalize an interested person for contesting the trust instrument, or for instituting other proceedings relating to a trust estate or trust assets, is unenforceable (§ 736.1108(1)). The text states no exceptions.
The section applies to trusts created on or after October 1, 1993. A revocable trust is treated as created when the right of revocation terminates (§ 736.1108(2)). The section does not address trusts created before that date. Wills are covered by a separate section, s. 732.517, which uses parallel language.
- A trust provision penalizing an interested person for contesting the trust instrument is unenforceable (§ 736.1108(1)).
- The same applies to a penalty for instituting other proceedings relating to a trust estate or trust assets (§ 736.1108(1)).
- The section applies to trusts created on or after October 1, 1993 (§ 736.1108(2)).
- A revocable trust is treated as created when the right of revocation terminates (§ 736.1108(2)).
- Wills are governed by s. 732.517, which makes a will provision penalizing a contest unenforceable (§ 732.517).
Text of the statute (2026)
(1) A provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or instituting other proceedings relating to a trust estate or trust assets is unenforceable.
(2) This section applies to trusts created on or after October 1, 1993. For purposes of this subsection, a revocable trust shall be treated as created when the right of revocation terminates.
Excerpts are the subsections the summary relies on. Read the full official text of § 736.1108.
History. s. 11, ch. 2006-217.
How it applies
A trust instrument may contain a clause that reduces or removes a beneficiary's share if the beneficiary contests the trust. Under § 736.1108(1), that clause is unenforceable for trusts within the section. Whether a trust falls within the section turns on the creation date in subsection (2), and for a revocable trust that date is when the right of revocation terminates, not when the instrument was signed. A clause in a will is evaluated under s. 732.517, a separate section with its own text.
Where this shows up
Pages on this site where § 736.1108 does real work:
Questions people ask
Sources
- Fla. Stat. § 736.1108, 2026 Florida Statutes (The Florida Senate) (Official text of the section. "is unenforceable.")
- Fla. Stat. § 732.517, 2026 Florida Statutes (The Florida Senate) (Parallel rule for wills. "unenforceable")
Last checked: October 17, 2026
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