MW If there's even a 1% chance of your will being contested, add this to your estate plan

By Morey Stettner

The stakes are high for heirs who expect a hefty inheritance

In an ideal world, you would draft your will and it would speak for itself. Your heirs would accept your wishes and honor your memory.

Reality doesn't always work that way.

Between 1% and 3% of wills are challenged in the United States each year. In these relatively rare but rancorous cases, heirs contest the validity of a will, and mayhem often results.

To lower the odds of postmortem chaos, you can insert a no-contest clause in your will. It dissuades heirs from challenging your will by voiding their inheritance if they contest it in court.

If a beneficiary contests the will-claiming, for example, that the person who created the will was a victim of a new spouse's undue influence-they risk losing their inheritance.

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The purpose of a no-contest clause is to prevent frivolous or emotionally reactive challenges to an estate. With a no-contest clause in place, disputing a will out of anger or shock can lead to automatic disinheritance.

"If there's even a 1% chance of having your will contested, that can result in a nasty, yearslong conflict involving your children," said James Mulhern, an estate planning attorney at Mulhern & Scott in Portsmouth, N.H. "Many clients say avoiding a family dispute after they're gone is their top priority in their estate plan."

As more seniors with substantial assets live longer, it raises the stakes for heirs who expect a hefty inheritance. This in turn makes no-contest clauses increasingly common in some states.

Wealthier retirees-the oldest baby boomers will turn 80 next year-are prioritizing legacy planning as they decide who will get their money after they die. More financial advisers are teaming up with estate planning attorneys to offer more customized advice to these aging clients.

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If you take Warren Buffett's advice and discuss your estate plan with your adult children, the odds of disputes plummet. People tend to contest wills when they are unpleasantly surprised.

That's why it's smart to communicate your wishes-and the contents of your will-to your heirs. You may not want to reveal details about all your assets. But at least you can educate them about why you're inserting certain provisions in your will.

"You want to deter the gut emotional reaction they might have when they find out for the first time [after you die] about the no-contest clause," said Robert Barton, a Los Angeles-based attorney at McDermott Will & Emery. "They often say, 'We never talked about this.'"

The risk of litigation increases if you "make an unequal distribution" of assets among your adult children, Barton adds. "Even with equal distribution, if you have a business interest, there's a risk that one kid might say, 'Mom and Dad promised me more of the business.'"

Awarding assets to a third party (such as other family members, friends, household help, charitable organizations, etc.) can stoke upset among offspring who were expecting a larger inheritance.

"If you've got blended families, children being omitted or even something as seemingly minor as one child getting the money outright while another gets it in a trust, that can lead to a challenge," Mulhern said. "If you make last-minute changes to your will," that's another risk.

Properly drafted, a no-contest clause can reduce the risk. But it's not foolproof.

For starters, enforceability of the clause varies by state. In Florida, for example, no-contest clauses are unenforceable.

"States that don't enforce take the position that certain wills should be contested, if there was undue influence, for example," Mulhern said. "They don't want to deter heirs from raising valid concerns."

Another issue involves how a no-contest clause works: It only has force against beneficiaries who are receiving something in the will. That's why it can be wise to avoid complete disinheritance.

Read: Tell your adult children about your wealth - just don't tell them everything

"If you [don't include] a child in the estate plan at all, then that child doesn't have anything to lose with a no-contest clause," Mulhern said. "It won't be a deterrent to that child. You can get some of that deterrent effect by giving them a smallish but still significant enough gift so that they have something to lose" by challenging their inheritance.

It's easy to assume that no-contest clauses only matter if you're wealthy and leaving a large inheritance. But disgruntled heirs of even modest estates might challenge a will.

"I've seen challenges at every wealth level," Barton said. "The more money that's involved, the more you should think of a no-contest clause as just one piece of your estate planning."

-Morey Stettner

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March 14, 2025 10:05 ET (14:05 GMT)

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