Tortious Interference with an Inheritance Expectancy in Florida
A parent writes a child out of a will three months before death. The relationship had been steady for decades until a new spouse entered the household. The disinherited child would take under Florida’s intestacy statute if the will fell, the estate is substantial, and several relatives can describe how the parent’s conduct changed over those final months.
The attorney hearing this account must consider the form of the claim alongside its strength. A will contest in probate is the familiar route, with undue influence and lack of capacity as familiar grounds. A second body of law approaches the alleged wrongdoing from a different direction, but its availability requires a threshold inquiry into the availability and adequacy of probate relief.
That body of law is tortious interference with an inheritance expectancy: a civil claim seeking damages from the person who interfered, distinct from a proceeding challenging the validity of the instrument. Florida has recognized it since 1966. It is not a lower-threshold substitute for undue influence.
The Elements
The claim is reflected in Restatement (Second) of Torts § 774B, which addresses intentional interference with an inheritance or gift through fraud, duress, or other tortious means. Florida courts state four elements: the existence of an expectancy, intentional interference with that expectancy through tortious conduct, causation, and damages. See Allen v. Leybourne, 190 So. 2d 825 (Fla. 3d DCA 1966); Whalen v. Prosser, 719 So. 2d 2 (Fla. 2d DCA 1998); Claveloux v. Bacotti, 778 So. 2d 399 (Fla. 2d DCA 2001).
A prior instrument, the decedent’s expressed intentions, or the claimant’s position under the intestacy statute may support an expectancy. But family status or disappointment alone does not establish the claim. The claimant must establish a reasonable certainty that, absent the interference, the expected benefit would have been received.
The interference must also involve independently tortious conduct. As Whalen explains, the underlying fraud, duress, or undue influence is directed at the testator rather than the disappointed beneficiary. Nothing about the tort relieves a claimant of proving wrongdoing, causation, and damages. The claim seeks compensation from the interfering party for the lost benefit, rather than merely a change in how the estate is distributed.
The Exhaustion Requirement
DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981), sets the gate. The Florida Supreme Court held that an available, adequate probate remedy must be exhausted before pursuing tortious interference. The plaintiffs had petitioned to revoke probate, then voluntarily dismissed that proceeding and elected to take under the will. Their later tort action was barred because they had an adequate probate remedy and a fair opportunity to pursue it.
The Court also recognized circumstances in which fraud discovered after probate could support a later damages action because probate relief had been unavailable. Late discovery alone, however, should not be treated as an automatic exception. The inquiry remains whether the circumstances prevented adequate probate relief and whether the claimant had a fair opportunity to pursue it.
When the Gate Opens
Schilling v. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007), illustrates the distinction. A caregiver allegedly procured a will benefiting herself and concealed the death from the decedent’s brother, preventing a timely contest. Reviewing a dismissal, the Third District accepted the allegations as true and distinguished the alleged fraud in obtaining the will from the alleged fraud in preventing its challenge. It allowed the claim to proceed; it did not determine that either fraud had been proved.
A related issue arises when alleged wrongdoing affects property passing outside the will, such as beneficiary-designated accounts, property transferred during life, or property held with survivorship rights. A successful will contest alone may not restore those assets. Their non-probate status does not automatically establish an interference claim, however; the elements and available remedies still require examination.
Timing matters at the front end as well. Florida courts generally defer inheritance-interference claims until after the testator’s death, subject to narrow exceptions. Whalen declined to permit the pre-death action presented there. Claveloux subsequently explained that exceptions involve unusual circumstances in which post-death remedies are virtually certain to be inadequate.
For Referring Attorneys
Drafting attorneys may encounter concerns about interference while a client is still planning. Litigators encounter the consequences later, sometimes when a will contest alone cannot restore the expected benefit. Two questions can help frame the initial review: did the disputed asset pass under the will, and did the circumstances surrounding administration prevent a fair opportunity to seek probate relief? The answers may affect the appropriate proceeding and available relief.
When a family has a potential claim involving a lost inheritance but lacks the liquidity to fund an hourly investigation, refer the matter to us. Referral fees up to 25 percent.
For Families and Beneficiaries
If a relative was pressured into changing a will, a trust, or a beneficiary designation, and you were cut out as a result, Florida law may provide a way to challenge the change. In appropriate circumstances, a claim for damages against the person responsible may also be available. The proper approach depends on the facts, how the property passed, and whether probate could provide adequate relief.
We handle these matters on a contingent fee basis, so there is nothing for your family to pay upfront and no cost unless we recover. Contact our office and we will evaluate the claim.
Tortious Interference with an Inheritance Expectancy in Florida
A parent writes a child out of a will three months before death. The relationship had been steady for decades until a new spouse entered the household. The disinherited child would take under Florida’s intestacy statute if the will fell, the estate is substantial, and several relatives can describe how the parent’s conduct changed over those final months.
The attorney hearing this account must consider the form of the claim alongside its strength. A will contest in probate is the familiar route, with undue influence and lack of capacity as familiar grounds. A second body of law approaches the alleged wrongdoing from a different direction, but its availability requires a threshold inquiry into the availability and adequacy of probate relief.
That body of law is tortious interference with an inheritance expectancy: a civil claim seeking damages from the person who interfered, distinct from a proceeding challenging the validity of the instrument. Florida has recognized it since 1966. It is not a lower-threshold substitute for undue influence.
The Elements
The claim is reflected in Restatement (Second) of Torts § 774B, which addresses intentional interference with an inheritance or gift through fraud, duress, or other tortious means. Florida courts state four elements: the existence of an expectancy, intentional interference with that expectancy through tortious conduct, causation, and damages. See Allen v. Leybourne, 190 So. 2d 825 (Fla. 3d DCA 1966); Whalen v. Prosser, 719 So. 2d 2 (Fla. 2d DCA 1998); Claveloux v. Bacotti, 778 So. 2d 399 (Fla. 2d DCA 2001).
A prior instrument, the decedent’s expressed intentions, or the claimant’s position under the intestacy statute may support an expectancy. But family status or disappointment alone does not establish the claim. The claimant must establish a reasonable certainty that, absent the interference, the expected benefit would have been received.
The interference must also involve independently tortious conduct. As Whalen explains, the underlying fraud, duress, or undue influence is directed at the testator rather than the disappointed beneficiary. Nothing about the tort relieves a claimant of proving wrongdoing, causation, and damages. The claim seeks compensation from the interfering party for the lost benefit, rather than merely a change in how the estate is distributed.
The Exhaustion Requirement
DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981), sets the gate. The Florida Supreme Court held that an available, adequate probate remedy must be exhausted before pursuing tortious interference. The plaintiffs had petitioned to revoke probate, then voluntarily dismissed that proceeding and elected to take under the will. Their later tort action was barred because they had an adequate probate remedy and a fair opportunity to pursue it.
The Court also recognized circumstances in which fraud discovered after probate could support a later damages action because probate relief had been unavailable. Late discovery alone, however, should not be treated as an automatic exception. The inquiry remains whether the circumstances prevented adequate probate relief and whether the claimant had a fair opportunity to pursue it.
When the Gate Opens
Schilling v. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007), illustrates the distinction. A caregiver allegedly procured a will benefiting herself and concealed the death from the decedent’s brother, preventing a timely contest. Reviewing a dismissal, the Third District accepted the allegations as true and distinguished the alleged fraud in obtaining the will from the alleged fraud in preventing its challenge. It allowed the claim to proceed; it did not determine that either fraud had been proved.
A related issue arises when alleged wrongdoing affects property passing outside the will, such as beneficiary-designated accounts, property transferred during life, or property held with survivorship rights. A successful will contest alone may not restore those assets. Their non-probate status does not automatically establish an interference claim, however; the elements and available remedies still require examination.
Timing matters at the front end as well. Florida courts generally defer inheritance-interference claims until after the testator’s death, subject to narrow exceptions. Whalen declined to permit the pre-death action presented there. Claveloux subsequently explained that exceptions involve unusual circumstances in which post-death remedies are virtually certain to be inadequate.
For Referring Attorneys
Drafting attorneys may encounter concerns about interference while a client is still planning. Litigators encounter the consequences later, sometimes when a will contest alone cannot restore the expected benefit. Two questions can help frame the initial review: did the disputed asset pass under the will, and did the circumstances surrounding administration prevent a fair opportunity to seek probate relief? The answers may affect the appropriate proceeding and available relief.
When a family has a potential claim involving a lost inheritance but lacks the liquidity to fund an hourly investigation, refer the matter to us. Referral fees up to 25 percent.
For Families and Beneficiaries
If a relative was pressured into changing a will, a trust, or a beneficiary designation, and you were cut out as a result, Florida law may provide a way to challenge the change. In appropriate circumstances, a claim for damages against the person responsible may also be available. The proper approach depends on the facts, how the property passed, and whether probate could provide adequate relief.
We handle these matters on a contingent fee basis, so there is nothing for your family to pay upfront and no cost unless we recover. Contact our office and we will evaluate the claim.