DRAFTING NO CONTEST CLAUSES UNDER THE NEW LAW

By Neil F. Horton^* and Richard L. Ehrman^**

I. INTRODUCTION

As of January 1, 2010,¹ Probate Code sections 21310—21315 govern the enforcement of no contest clauses in all instruments, whenever executed, that became or become irrevocable after January 1, 2001.² This new legislation greatly restricts the enforceability of no contest clauses. As a result, estate planners need to rethink whether and when to use no contest clauses, how they draft no contest clauses, and whether and when to use alternatives to no contest clauses. They also will want to reconsider no contest clauses in existing estate plans that contain revocable trusts.

This article discusses how the new law restricts the planner’s ability to use no contest clauses, advises planners how to use no contest clauses in light of the new restrictions, suggests alternatives to traditional no contest clauses, and provides forms for planners to consider and adapt.