Can you sue a person for interfering with your inheritance in Florida?

The short answer is yes, and there may be multiple causes of action. Maybe the will or trust was changed because of some trick or undue influence. Maybe the will was changed while the decedent lacked the mental capacity to realize the difference. Or, perhaps someone interfered with your inheritance.

Although there may be multiple causes of action, this post is focused on whether you can sue for the interference of an inheritance.

If you can prove that you would have inherited but for the other person’s malicious interference, you have a claim for what is called tortious interference with expectancy. Davison v. Feuerherd, 391 So. 2d 799, 799 (Fla. 2d DCA 1980)

What is Tortious Interference with Expectancy?

We’re am glad you asked.

 Tortious interference with an expectancy is surprisingly a “new” cause of action in Florida. That is in quotes, because the first recognized claim was in 1966 in a case called Allen v. Leybourne.

The elements of a tortious interference with inheritance claim are straightforward, but the factual investigation needed to establish the elements can be challenging.

The elements are:

1. The existence of an expectancy
2. The intentional interference with the expectancy through tortious conduct
3. That tortious conduct was the cause of the lost inheritance
4. And damages (typically the lost inheritance)

See Schilling v. Herrera, 952 So. 2d 1231, 1233 (Fla. 3d DCA 2007)

Let’s start with the first element. What is an expectancy?

An expectancy is a fancy way of saying an inheritance, which is a fancy way of saying the money or property you expected to get from the will.  The term expectancy can get complicated if the property right has not vested yet, but that it for another post. It is important to note that an expectancy can actually be a present inter vivos gift (gift made during the decedent’s lifetime) or a testamentary gift (gift made according to the will), or through a trust. The person giving the gift must have a fixed intention to give the gift. There is nothing actionable if a the decedent simply changed his or her mind, there must be a fixed intent to give it to one person and that fixed intent must get disrupted.

Second, there must be some interference with that fixed intention AND that interference must be through tortious conduct. For example, let’s say your brother always wanted you to have his expensive boat. But, he marries a woman, passes away, and his new will left his wife the boat. Of course, that is not actionable. The interference must also be intentional; it cannot be negligent or accidental. And although it has been tried, the fact that a lawyer drafted the new will does not mean he or she interfered with the expectancy, although someone once argued that. Chase v. Bowen, 771 So. 2d 1181, 1182 (Fla. 5th DCA 2000)

So, you’ve got a primer on what is not actionable, but what is the intentional tortious conduct? Any independent intentional tort can give rise to the tortious interference with expectancy. This includes:

• Fraud
• Undue Influence
• Coercion
• Duress
• Forgery
• Destruction of an instrument
• Duress
•  Conversion or Theft
•  Defamation
• A breach of some fiduciary relationship

Lastly, that tortious conduct must be the cause of losing the inheritance. This is often a difficult area to prove because there may have been other factors contributing to the reason the estate plan changed. For example, maybe there was different event that altered the inheritance such as a death, marriage, birth, or other family event that influenced the decision to change the estate plan. If you were an