Tortious Interference with an Inheritance in Florida: When the Claim Works and When DeWitt Bars It

Most inheritance disputes in Florida are won or lost in probate. The tort of intentional interference with an expectancy of inheritance is the exception, and it is a narrow one. The Florida Supreme Court built a gate in front of it in 1981, and that gate still decides most of these cases.

Used in the right case, the tort does things a will contest cannot. It reaches assets that never pass through probate. It produces a money judgment against the wrongdoer personally. It gets you a jury. Used in the wrong case, it is dismissed as a collateral attack on a probated will, usually after the probate deadline has already run.

This article covers the elements, the DeWitt rule, the fact patterns where the tort survives, the timing traps, and how I think about whether to bring it.

1. What the tort is

Florida first recognized the claim in Allen v. Leybourne, 190 So. 2d 825 (Fla. 3d DCA 1966). The daughter alleged her father had agreed to leave his estate to his three daughters equally, and that her stepmother induced him not to carry out that agreement. He died with a will leaving everything to the stepmother. The Third District held:

“[W]hen there is an allegation that the testator had a fixed intention to make a bequest in favor of the plaintiff and there existed a strong probability that this intention would have been carried out but for the wrongful acts of the defendant there exists a cause of action.” Id. at 829.

The court added that “[w]rongful interference includes duress, fraud or undue influence,” and that difficulty of proof “does not affect the existence of a ground of tort liability.” Id.

Florida courts now state the elements this way: “(1) the existence of an expectancy; (2) intentional interference with the expectancy through tortious conduct; (3) causation; and (4) damages.” Claveloux v. Bacotti, 778 So. 2d 399, 400 (Fla. 2d DCA 2001); Whalen v. Prosser, 719 So. 2d 2 (Fla. 2d DCA 1998); Mulvey v. Stephens, 250 So. 3d 106 (Fla. 4th DCA 2018).

The model is Restatement (Second) of Torts § 774B (1979), which Florida adopted in Davison v. Feuerherd, 391 So. 2d 799, 801 (Fla. 2d DCA 1980):

“One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.”

Four points about the elements matter in practice.

The tortious conduct is aimed at the decedent, not the plaintiff. “The fraud, duress, undue influence, or other independent tortious conduct required for this tort is directed at the testator. The beneficiary is not directly defrauded or unduly influenced; the testator is.” Whalen, 719 So. 2d at 6. The Second District called it “an unusual tort because the beneficiary is authorized to sue to recover damages primarily to protect the testator’s interest rather than the disappointed beneficiary’s expectations.” Id. For the same reason, the plaintiff does not have to show the defendant owed the plaintiff any duty. Schilling v. Herrera, 952 So. 2d 1231, 1235 (Fla. 3d DCA 2007).

The conduct must be independently tortious. Persuasion is not enough. Comment c to § 774B says “one who by legitimate means merely persuades a person to disinherit a child and to leave the estate to the persuader instead is not liable to the child.” The Fourth District applied that rule in Mulvey to throw out a $60,000 jury verdict: “Merely changing a document such as a trust or will is insufficient because undue influence requires some showing that the alleged tortfeasor took improper actions.” 250 So. 3d 106. Undue influence must amount to “over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.” Id. (quoting Henry v. Jones, 202 So. 3d 129, 133 (Fla. 2d DCA 2016)).

The expectancy must be proven to a reasonable certainty. The plaintiff “must prove to a reasonable certainty that she would have been the beneficiary of the trust but for appellees’ malicious interference.” Davison, 391 So. 2d at 802. A child’s relationship to the parent, standing alone, is not an expectancy. Cooke v. Cooke, 278 So. 2d 683, 685 (Fla. 3d DCA 1973).

Damages must be proven, not assumed. In Saewitz v. Saewitz, 79 So. 3d 831 (Fla. 3d DCA 2012), the Third District affirmed a directed verdict because testimony that the assets were worth “millions” was not tied to a relevant time. “The amount of damages claimed need not be proven with exactitude, but it must not be based upon speculation or guesswork.” Id. at 834.

2. The gate: DeWitt v. Duce

The case that controls this tort is DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981). The plaintiffs filed a petition to revoke probate, dismissed it, took under the will, and sued the housekeeper in federal court two and a half years later for undue influence. The Florida Supreme Court, answering a certified question, held the tort claim barred:

“The rule is that if adequate relief is available in a probate proceeding, then that remedy must be exhausted before a tortious interference claim may be pursued.” Id. at 218.

The statutory hook is section 733.103(2), Florida Statutes, which still reads: “In any collateral action or proceeding relating to devised property, the probate of a will in Florida shall be conclusive of its due execution; that it was executed by a competent testator, free of fraud, duress, mistake, and undue influence; and that the will was unrevoked on the testator’s death.” Once the will is probated and the contest window closes, the plaintiff cannot prove the tortious conduct in a later suit about the same devised property.

The converse is what keeps the tort alive. The court allowed the later action “only if the circumstances surrounding the tortious conduct effectively preclude adequate relief in the probate court.” Id. at 219. It then listed examples:

1. Fraud not discovered until after probate, where “relief in probate was impossible.” Id.
2. Tortious conduct that caused an inter vivos transfer of assets “that would otherwise have been part of the estate,” where “setting aside the will would be inappropriate redress.” Id.
3. Interference with a revocable trust, “a matter apparently outside of probate jurisdiction.” Id. (discussing Davison).
4. Interference with an inter vivos gift, “a matter outside of the scope of probate.” Id. (discussing Watts v. Haun, 393 So. 2d 54 (Fla. 2d DCA 1981)).

Adequacy is measured by what the probate court can give compared with what the plaintiff reasonably expected before the interference. Id. at 220 n.11. Punitive damages do not count in that comparison. Id.

The probate deadline is short. An interested person served with the notice of administration must object to the will’s validity within 3 months after service “or those objections are forever barred.” § 733.212(3), Fla. Stat. That period “may only be extended for estoppel based upon a misstatement by the personal representative regarding the time period,” and not for “affirmative representation, failure to disclose information, or misconduct by the personal representative or any other person.” Id. Most DeWitt problems start with a client who comes in month four.

Discovery alone does not save a missed objection. In All Children’s Hospital, Inc. v. Owens, 754 So. 2d 802 (Fla. 2d DCA 2000), residuary charities with notice filed no objection and later sued the caretaker. The court held that “failure to discover the alleged undue influence … does not render inadequate the remedy provided by section 733.212,” and that any theory of “concealed tortious interference” must be “carefully restricted.” Id. at 807. Its reason was practical: otherwise “devised property would effectively have a cloud upon its title for years after it was transferred.” Id. at 808.

Litigating and losing in probate also has consequences. In Kramer v. Freedman, 272 So. 2d 195, 199 (Fla. 3d DCA 1973), a plaintiff who lost a petition to revoke on duress and undue influence was collaterally estopped from relitigating those issues in tort. Compare Davison, 391 So. 2d at 802, where a prior capacity-based revocation petition did not estop the later tort claim. The Fourth District has questioned “whether DeWitt permits the same parties to challenge the same purported tortious conduct in two separate actions,” but did not decide it because preclusion was not raised. Mulvey, 250 So. 3d 106. Expect that argument from the defense.

3. Where the tort survives DeWitt

The useful way to read the case law is as a map of situations where probate cannot give the plaintiff what the decedent intended.

a. Nonprobate assets: trusts, lifetime transfers, and gifts

Probate cannot reach what is not in the estate. Most of the wealth in modern Florida estates sits in revocable trusts, joint accounts, POD and TOD designations, and lifetime transfers.

Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997), is the leading case. More than 95% of an $8 million estate was in a revocable trust. The sons did not contest the pour-over will. The Fourth District held their trust-based tort claim was not barred: “There are simply too many distinctions, both procedural and substantive, between wills and trusts, for the reasoning of DeWitt, and the purpose of section 733.103(2), as it was articulated in DeWitt, to preclude the claims brought in this case.” Id. at 907-08. Two limits came with it. The sons could not attack the unchallenged wills in the tort action. Id. at 907. And the result depended on the will not incorporating the trust by reference. Id. at 906-07.

Lifetime gifts and transfers follow the same logic. Watts recognized the tort for interference with an intended gift of stock. 393 So. 2d at 56. DeWitt itself said a tort action is “properly allowed” where the wrongdoing produced an inter vivos conveyance. 408 So. 2d at 219.

When the claim attacks lifetime transfers, I plead it without anchoring it to a will. Standing rests on the client’s status as heir or beneficiary. The infirmity is in the transfer itself: capacity at the time of the deed, the scope of the power of attorney, undue influence at the conveyance. Dragging a will into a deed case invites a fight over which will controls, and that fight belongs in probate.

b. Extrinsic fraud that kept the plaintiff out of probate

Fraud in the making of the will is a probate issue. Fraud that prevented the will contest is different. In Ebeling v. Voltz, 454 So. 2d 783, 785 (Fla. 4th DCA 1984), the stepfather told the children they would get their mother’s assets regardless of the will, so they did not contest it. The court held: “Extrinsic fraud, or in other words, fraud alleged in the prevention of the will contest, as opposed to in the making of the will, would appear to be the type of circumstance that would preclude relief in the probate court.”

Schilling applied the same rule. The caretaker procured a new will naming herself sole beneficiary, opened the estate, ran out the creditor period, and told the decedent’s brother about the death only after she petitioned for discharge. The Third District reversed the dismissal because the complaint alleged he “was prevented from contesting the will in the probate court due to Ms. Herrera’s fraudulent conduct.” 952 So. 2d at 1237.

c. No notice of the probate proceeding

In Wolf v. Doll, 229 So. 3d 1280, 1283 (Fla. 4th DCA 2017), the Fourth District put it plainly: if the plaintiff was given notice of the probate proceeding, her collateral claims are barred; “if Wolf was not given notice of the probate proceeding, she was effectively precluded from obtaining adequate relief in that proceeding, and her collateral claims are not barred.” The court also questioned whether actual notice, as opposed to formal service, is enough to trigger the bar. Whether and how your client was served is the first fact to pin down.

d. Probate can strike, but it cannot add

Defeating a will helps only if the fallback is what the decedent intended. If the plaintiff would take the same share in intestacy or under a prior will, probate is adequate. That is why Kramer failed: had the plaintiff defeated the will, “she would have taken equally with her half-sisters by intestacy, exactly what the testator had promised.” DeWitt, 408 So. 2d at 220.

When the decedent was prevented from making a new, better instrument, probate has nothing to probate. DeWitt quoted the treatise rule: “Probate can strike from the will something that is in it as a result of fraud but cannot add to the will a provision that is not there nor can the probate court bring into being a will which the testator was prevented from making and executing by fraud.” Id. at 219 n.7 (quoting Page on Wills). The court read Allen and Cooke as cases where the promised share was larger than the intestate share, which made the tort available. Id. at 219-20 & n.10.

e. No probate at all, and an emptied estate

In Neumann v. Wordock, 873 So. 2d 502 (Fla. 2d DCA 2004), a sister used a power of attorney and procured wills to drain the parents’ assets. No estate was ever opened. The Second District reversed summary judgment for the sister. “No probate proceeding is ongoing, and no personal representative is pursuing any claim. There is no risk that the instant tort action might interfere with a probate proceeding.” Id. at 504. There was no earlier will matching the parents’ intended plan, and the intended plan differed from intestacy, so the record did not show an adequate probate remedy. Id. at 505.

Contrast that with All Children’s, where an administration was open and an administrator ad litem was already pursuing the same lifetime-transfer claims. The court was “not inclined to believe that such a lawsuit should be permitted during the pendency of the Estate, at least barring some exceptional circumstance.” 754 So. 2d at 805-06. If an estate is open and a fiduciary can recover the assets for everyone, expect the court to send you there first.

4. Timing

No suit before death. A disappointed beneficiary generally cannot sue while the decedent is alive. “[P]rior to death, the hope of an inheritance is not sufficiently concrete to create a property right. The disappointed beneficiary only obtains ‘vested’ rights when the testator dies.” Whalen, 719 So. 2d 2. That holds even if the decedent is alive but incompetent. Claveloux, 778 So. 2d at 400. Exceptions are limited “to relatively rare circumstances in which post-death remedies are virtually certain to be inadequate.” Id. During the decedent’s life, the tools are a guardianship, the guardian’s power to contest a revocable trust under section 736.0207(2), and the remedies in chapters 415 and 825.

Accrual at death. “[N]o cause of action accrues until the testator’s death.” In re Estate of Tensfeldt, 839 So. 2d 720, 724 (Fla. 2d DCA 2003).

Four years for the tort. The claim is an intentional tort, governed by the four-year period in section 95.11(3)(n), which covers “malicious interference … or any other intentional tort.” Watch the lettering. The 2023 amendments moved paragraphs around, and older briefs cite the wrong subsection. The statutory delayed-discovery rule in section 95.031(2)(a) applies to fraud claims, not to every tort.

The probate and trust clocks run much faster. Three months from service of the notice of administration for a will objection. § 733.212(3). For a trust that was revocable at death, the earlier of the chapter 95 period or six months after the trustee sends the trust instrument and the required notice. § 736.0604. Those are the deadlines that decide whether DeWitt will be raised against you. The four-year tort period is a false comfort if the client has been served.

5. Why bring the tort instead of, or alongside, a contest

When the tort is available, it has real advantages.

1. It reaches the wrongdoer, not just the estate. A will contest voids an instrument. The tort produces an in personam judgment against the person who did the interfering, and it follows assets that were moved out of the estate before death. Comment e to § 774B also supports a constructive trust where the defendant holds the benefit, and DeWitt recognized that remedy. 408 So. 2d at 219 n.7.
2. A jury. Will contests are tried to the probate judge. The tort is an action at law. A 2025 Florida Bar Journal article on defending these claims notes they are increasingly filed because they “effectively bypass the estate or trust administration, minimize the number of necessary parties to the litigation, and obtain the right to a jury trial.” Daniel A. Seigel, Creative Strategies for Defending Cases Involving Tortious Interference With Inheritance Expectation Claims, 99 Fla. B.J. No. 2, at 14 (Mar./Apr. 2025).
3. Fewer parties. You sue the person who interfered. You do not have to join every beneficiary and the personal representative.
4. A federal forum, in the right case. The probate exception does not bar a federal court from hearing the tort. It “reserves to state probate courts the probate or annulment of a will and the administration of a decedent’s estate,” and bars federal courts from disposing of property in a state probate court’s custody, “[b]ut it does not bar federal courts from adjudicating matters outside those confines.” Marshall v. Marshall, 547 U.S. 293 (2006). DeWitt itself began as a diversity case.
5. Punitive damages, possibly. Florida law here is unsettled. In 1981 the Supreme Court said it could “find no case authority allowing punitive damages in this type of action.” DeWitt, 408 So. 2d at 220 n.11. I have not found a later Florida appellate decision squarely deciding the question either way. If you pursue them, the procedure is section 768.72: no punitive claim in the initial complaint, leave of court on a record showing, and clear and convincing proof at trial.

6. What it costs

The tort is not the easy path.

Proof is harder. You are proving a fixed intention, a strong probability it would have been carried out, independent tortious conduct, and damages with reasonable certainty. Allen, 190 So. 2d at 829; Davison, 391 So. 2d at 802; Mulvey; Saewitz.

The undue influence presumption. In probate, the presumption arises “if a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will.” In re Estate of Carpenter, 253 So. 2d 697, 701 (Fla. 1971). Carpenter lists the active-procurement factors: the beneficiary’s presence at execution; presence when the testator expressed a desire to make a will; recommending the attorney; knowing the contents before execution; giving instructions to the drafting attorney; securing the witnesses; and safekeeping the will afterward. Id. at 702. Carpenter held the presumption shifted only the burden of coming forward. Id. at 704. The Legislature has since provided, in the will-contest burden statute, that the presumption “is therefore a presumption shifting the burden of proof under ss. 90.301-90.304.” § 733.107(2), Fla. Stat. Whether that burden shift carries into a stand-alone civil tort action is a question the statute does not answer on its face. Build the record as if you will have to carry the burden yourself.

No standard jury instruction. Florida has no standard civil jury instruction for this tort, for undue influence, or for testamentary capacity. Counsel draft special instructions, usually built from the case-law elements, § 774B, and the instructions on interference with business relationships (408) and fiduciary duty (451). Cooke is a rare reported decision discussing an approved charge on this tort. 278 So. 2d at 684.

Fees. There is no fee-shifting statute for the tort. Compare section 733.106(4), under which the probate court may charge fees against a party’s share of the estate, and section 736.1004, which makes fees mandatory in breach-of-trust actions. A weak tort claim also carries section 57.105 exposure.

The defense playbook. Expect, in roughly this order: the DeWitt bar and section 733.103(2); a lack of independent tortious conduct under Mulvey; a speculative expectancy; collateral estoppel from any probate ruling under Kramer; a premature claim under Whalen if the decedent is alive; and limitations.

7. How I decide whether to use it

When a family comes in convinced someone stole an inheritance, I work through the same sequence.

1. Map the assets. Separate probate assets from trust assets, joint and POD accounts, beneficiary designations, and lifetime transfers. The tort’s value grows with the share that sits outside probate.
2. Calendar every clock on day one. Date of death. Date and manner of service of any notice of administration. Date the trustee sent the trust and the section 736.0604 notice. Four years from death for the tort.
3. If a probate remedy is available, use it, and on time. Object to the will. Contest the trust. DeWitt punishes the plaintiff who “lacked assiduity.” 408 So. 2d at 221. Filing the contest does not forfeit the tort for the assets probate cannot reach, and Martin recognizes that a will contest in the probate division and a trust action in the civil division can be consolidated “under appropriate circumstances.” 687 So. 2d at 907.
4. If the probate window has closed, look for the exceptions. No service of notice (Wolf). Fraud that kept the client from contesting (Ebeling, Schilling). Assets outside the estate (Martin, Watts). An intended plan that probate cannot produce (Allen, Neumann).
5. Plead the independent tort with specifics. Name the fraud, the duress, or the acts of undue influence. Fraud must be pleaded with particularity. Fla. R. Civ. P. 1.120(b). A changed document is not a tort. Mulvey.
6. Build the proof of intent early. Prior instruments, drafting attorney files, statements to friends and advisors, medical records for the period of the change, and the Carpenter factors.
7. Build the damages model with dates. Value the lost expectancy as of a legally relevant time. Saewitz.
8. Consider the companion remedies. A personal representative can sue for the decedent’s own exploitation claim under section 415.1111, which allows actual and punitive damages and prevailing-party fees. Section 825.103(1)(f) makes fraudulent changes to a will or trust of an elderly person a form of criminal exploitation. If the beneficiary killed the decedent, section 732.802 controls.

8. The short version

1. The tort exists to protect the decedent’s freedom to dispose of property, so the wrong must be done to the decedent and must be independently tortious.
2. If probate could have given the plaintiff what the decedent intended, and the plaintiff had notice and a fair chance, the tort is barred.
3. The tort lives where probate cannot reach: trusts, lifetime transfers, gifts, extrinsic fraud, lack of notice, and plans the decedent was prevented from making.
4. Nothing accrues before death, and the probate and trust deadlines, not the four-year tort period, usually decide the case.
5. When it fits, it puts the wrongdoer personally in front of a jury. That is the reason to bring it.

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Brice Zoecklein is the owner of Zoecklein Law, P.A., which handles probate, trust, and inheritance litigation in Florida. This article is general information and is not legal advice for any particular matter. Case law in this area changes; check current authority before relying on any case or statute cited here.

Authorities cited

Florida Supreme Court

• DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981)
• In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971)

Florida District Courts of Appeal

• Allen v. Leybourne, 190 So. 2d 825 (Fla. 3d DCA 1966)
• All Children’s Hospital, Inc. v. Owens, 754 So. 2d 802 (Fla. 2d DCA 2000)
• Claveloux v. Bacotti, 778 So. 2d 399 (Fla. 2d DCA 2001)
• Cooke v. Cooke, 278 So. 2d 683 (Fla. 3d DCA 1973)
• Davison v. Feuerherd, 391 So. 2d 799 (Fla. 2d DCA 1980)
• Ebeling v. Voltz, 454 So. 2d 783 (Fla. 4th DCA 1984)
• Henry v. Jones, 202 So. 3d 129 (Fla. 2d DCA 2016)
• In re Estate of Tensfeldt, 839 So. 2d 720 (Fla. 2d DCA 2003)
• Kramer v. Freedman, 272 So. 2d 195 (Fla. 3d DCA 1973)
• Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997)
• Mulvey v. Stephens, 250 So. 3d 106 (Fla. 4th DCA 2018)
• Neumann v. Wordock, 873 So. 2d 502 (Fla. 2d DCA 2004)
• Saewitz v. Saewitz, 79 So. 3d 831 (Fla. 3d DCA 2012)
• Schilling v. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007)
• Watts v. Haun, 393 So. 2d 54 (Fla. 2d DCA 1981)
• Whalen v. Prosser, 719 So. 2d 2 (Fla. 2d DCA 1998)
• Wolf v. Doll, 229 So. 3d 1280 (Fla. 4th DCA 2017)

United States Supreme Court

• Marshall v. Marshall, 547 U.S. 293 (2006)

Statutes

• §§ 95.031, 95.11(3)(n), 415.1111, 732.802, 733.103, 733.106, 733.107, 733.212, 736.0207, 736.0604, 736.1004, 768.72, 825.103, Fla. Stat. (2026)

Rules

• Fla. R. Civ. P. 1.120(b)

Secondary

• Restatement (Second) of Torts § 774B & cmts. c-e (1979)
• Daniel A. Seigel, Creative Strategies for Defending Cases Involving Tortious Interference With Inheritance Expectation Claims, 99 Fla. B.J. No. 2, at 14 (Mar./Apr. 2025)