No-Contest Clauses in Kentucky Wills and Trusts: Are They Enforceable?
If you’re thinking about contesting a loved one’s will or trust, you may have been warned: “Be careful — there’s a no-contest clause.” These clauses (sometimes called “in terrorem” clauses) are designed to discourage beneficiaries from challenging the document by threatening to disinherit anyone who does. But are they actually enforceable in Kentucky? The answer is nuanced — and understanding the rules can make the difference between losing your inheritance and protecting your rights.
What Is a No-Contest Clause?
A no-contest clause is a provision in a will or trust that says, in essence, “If any beneficiary challenges this document, that beneficiary forfeits their inheritance.” The purpose is to deter litigation — the idea being that a beneficiary will think twice about filing a contest if doing so could cost them everything they stand to inherit.
Are They Enforceable in Kentucky?
Yes — and Kentucky takes a notably strict approach. Kentucky courts enforce no-contest clauses, and, unlike the many states that have adopted the Uniform Probate Code, Kentucky does not recognize a probable-cause or good-faith exception. In other words, a beneficiary who challenges a will or trust and loses can forfeit their inheritance under the clause even when the challenge was brought in good faith and on reasonable grounds.
That makes a Kentucky no-contest clause a powerful deterrent. Because there is no safe harbor for a good-faith but unsuccessful contest, the decision to challenge a document that contains one of these clauses carries real risk and should be evaluated carefully before any action is taken.
The One Major Limit
There is an important practical limit. If a contest succeeds and the court invalidates the entire will or trust — for example, on grounds of undue influence, fraud, or lack of capacity — the no-contest clause falls along with the rest of the document and cannot be enforced. The forfeiture risk therefore lands hardest on challenges that are brought and lost, which is why an honest, up-front assessment of the strength of your evidence is essential.
Strategic Considerations
If a will or trust contains a no-contest clause, the decision to file a contest requires careful analysis. You need to weigh the strength of your evidence against the risk of forfeiture, the value of your existing bequest against the potential recovery if the contest succeeds, and whether there are alternative approaches — such as negotiation or mediation — that might achieve your goals without triggering the clause. This is precisely the kind of situation where getting a lawyer’s assessment before taking action is essential.
If you’re facing a no-contest clause and want to understand your options, call me at (859) 225-9540 or use the contact form.
Joseph D. Buckles is a probate litigation attorney at Buckles Law Office, PLLC in Lexington, Kentucky.
