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Does Florida Permit Lawsuits for “Tortious Interference” with an Expected Inheritance?


There is a special type of claim that occasionally comes up in probate law known as “tortious interference.” Let’s say Lewis makes a will leaving his estate to his daughter Sarah. But Lewis subsequently makes a new will disinheriting Sarah. Sarah believes her father’s change-of-heart was due to the fact he was under the undue influence of a third party. After Lewis dies, Sarah could file a contest to the new will on undue influence grounds. But she might also attempt to sue the third party directly for tortious interference with her “expected inheritance rights.”

Florida Follows “Probate First” Rule in Tortious Interference Cases

At least, that is the legal theory behind tortious interference claims. In practice, such claims are difficult to prove, and in many states they are not even allowed. For instance, the South Dakota Supreme Court recently said it would not “recognize a cause of action for tortious interference with inheritance or expectancy of inheritance.” The South Dakota court acted in response to a question from a federal judge overseeing a tortious interference claim brought by a man who alleged his sister used undue influence to coerce their mother into amending her trust.

In reviewing how other state supreme courts have addressed this subject, the South Dakota decision noted Florida has “adopted the tort but required plaintiffs to first exhaust probate remedies.” Indeed, the Florida Supreme Court was also asked to answer a question regarding the existence of the tortious interference claim by a federal court, in this case the Fifth Circuit Court of Appeals, which previously had federal appellate jurisdiction over Florida.

In a 1981 decision, DeWitt v. Duce, the Florida court noted that “[a]lthough a cause of action for wrongful interference with a testamentary expectancy has been recognized in this state,” it could not be used to mount a “collateral attack” on the original probate proceedings. In plain English, if an heir feels they were cheated out of an inheritance due to an act of undue influence, they should contest the will in probate court. Only if the alleged interference somehow prevents the probate court from dealing with the situation is it appropriate for the heir to file a separate lawsuit for tortious interference.

For example, if the alleged undue influence or fraud was not discovered until after the administration of the probate estate was completed, the Florida court said an affected heir “is allowed to bring a later action for damages since relief in probate was impossible.”

Speak with a Florida Estate Litigation Lawyer Today

Whether we are talking about tortious interference or undue influence, it is important to understand the person making the challenge has the burden of proof. As a general rule, people are free to change their wills as they wish and leave their property to whomever they choose. The mere fact you “expected” an inheritance that never came to pass is not, in and of itself, proof of undue influence or tortious interference on the part of a third party.

If you need legal advice or assistance in this area from an experienced Fort Myers estate litigation attorney, call the Kuhn Law Firm, P.A., at 239-333-4529 to schedule a free consultation.


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