## Facts

- Mr. Dinkins died with a multi‑million‑dollar estate, reported as exceeding $24 million and estimated as high as $55 million, including assets held in trust.
- Before death, Mr. Dinkins created a revocable living trust as part of his estate plan.
- The trust provided for, among other dispositions, a QTIP trust and other trust benefits for his surviving spouse, Jeanette M. Dinkins.
- The trust also contained a clause titled “Conditional Specific Bequest of Cash,” which directed the trustee to distribute $5,000,000 outright to Jeanette if she (or her legal representative) both (a) disclaimed all of her interest in the QTIP trust and (b) waived her statutory right to elect an elective share.
- Jeanette filed a declaratory judgment action challenging the validity of the conditional $5,000,000 bequest, arguing it operated as an unlawful “penalty clause” under Florida Statutes section 736.1108(1).
- Jeanette also disputed whether a separate trust established for her benefit could be used to satisfy (in whole or in part) her elective share under Florida law.
- The trial court ruled for the trustee/other beneficiaries, determining the conditional bequest was not an invalid penalty clause and that the separate trust could be used to satisfy the elective share; Jeanette appealed.

## Issues

1. Whether a trust provision offering the surviving spouse a $5,000,000 cash bequest only if she disclaimed her QTIP interest and waived her elective share is an unenforceable “penalty clause” under section 736.1108(1), Florida Statutes.
2. Whether a separate trust created for the surviving spouse may be used to satisfy the spouse’s elective share.

## Decision

- The Fifth District Court of Appeal affirmed.
- The court held the conditional $5,000,000 bequest was not an unenforceable penalty clause under section 736.1108(1).
- The court affirmed the ruling that the separate trust established for the surviving spouse could be used to satisfy her elective share.

## Legal Principles

- Florida Statutes section 736.1108(1) makes unenforceable a trust provision that purports to penalize an interested person for contesting the trust or instituting proceedings relating to the trust estate or trust assets.
- A classic no‑contest (forfeiture) clause is the type of provision targeted by section 736.1108(1) because it conditions a beneficiary’s gift on refraining from a trust contest or related litigation.
- A provision that presents a surviving spouse with a choice between (a) taking the statutory elective share and (b) accepting a different benefit package conditioned on a waiver of the elective share is not automatically a “penalty” for litigation or a trust contest; it can function as an alternative offer rather than a forfeiture for suing.
- Florida’s elective share is a statutory minimum benefit that may be waived, and the elective share regime permits satisfaction through qualifying interests and transfers included in the elective estate, which may include certain trust-based benefits for the spouse.

## Conclusion

In *Dinkins v. Dinkins*, the Florida Fifth District Court of Appeal affirmed a declaratory judgment upholding a revocable trust provision that offered the decedent’s widow an outright $5 million distribution only if she disclaimed her QTIP interest and waived her elective share, concluding the term did not constitute an unenforceable penalty clause under section 736.1108(1), and further affirming that a separate trust created for the spouse could be credited toward satisfaction of her elective share.


Dinkins v. Dinkins, 120 So. 3d 601 (2013)