Dinkins v. Dinkins
Dinkins v. Dinkins , 2013 WL 3834371 (Fla. 4th DCA 2013) It is well established in Florida that penalty clauses in trusts are invalid. Fla. Stats. 736.1108(1) provides that, "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." Here, a husband's trust contained a conditional specific bequest of cash for his spouse, which said that if his wife made a valid disclaimer of her interest in the QTIP trust created under the trust, and she waived her right to elect the elective share, then she would receive a cash bequest of $5,000,000. The wife argued that this was an unlawful penalty clause, since it would penalize her for taking the elective share by causing her to forfeit the $5,000,000 bequest. The Court held that the clause is not a penalty clause. The Court explained that if it were a penalty clause, the