When Silence Outlives the Client: Attorney-Client Privilege After Death in Florida

Most people assume that what they tell their attorney stays private forever, even after they pass away. In many respects, that assumption is correct. Florida law recognizes that the duty of confidentiality between a lawyer and client survives death. But when it comes to wills and trusts, there is a carve-out that often surprises families involved in a dispute. Understanding how attorney-client privilege operates after death, and when it can be pierced, is essential for anyone facing a contested estate. A Pompano Beach estate litigation lawyer can walk you through how this rule may apply to your situation.

The General Rule of Confidentiality

Under Florida’s Evidence Code, communications between a lawyer and client made in confidence, for the purpose of obtaining legal services, are protected from compelled disclosure. This privilege belongs to the client, and after death, it may generally be claimed on the client’s behalf by a personal representative or other successor. In theory, this means an estate planning attorney cannot simply hand over notes or conversations about a client’s will just because the client has died.

Florida Statutes section 90.502 lays out both the scope of this privilege and, importantly, the exceptions that can override it.

The Testamentary Exception

The most significant exception in probate litigation is what practitioners call the testamentary exception. Florida law provides that there is no lawyer-client privilege when a communication is relevant to a dispute between parties who all claim through the same deceased client. When family members fight over what a decedent’s will or trust really meant, the attorney who drafted the document can often be required to testify about those very conversations.

Florida courts have applied this rule directly. In one case, several children challenged their mother’s wills, alleging she lacked testamentary capacity and that a sibling had exerted undue influence over her. The court held that the attorney who drafted the wills could be compelled to testify about the reasons behind the disinheritance, since all parties were claiming through the same deceased client. The reasoning is practical: letting every party invoke privilege would prevent courts from reaching the truth of what the decedent actually intended, delaying fair distribution of the estate.

This exception typically applies to will contests, disputes over testamentary capacity, undue influence claims, and questions about proper execution. It generally does not open the door to unrelated personal or financial information the decedent shared with the attorney for other purposes.

Why This Matters in a Dispute

If you are contesting a will or trust, or defending one, knowing that the drafting attorney’s file may become discoverable can change your entire strategy. Attorney notes, intake forms, and correspondence about the decedent’s intentions often become central evidence once litigation begins. If you are a personal representative or beneficiary trying to protect a document from being second-guessed, understanding the limits of this exception can help you push back against overly broad discovery requests.

Because these rules involve overlapping statutes, evidentiary rules, and case law, navigating them without guidance can be risky. A Pompano Beach estate litigation attorney can evaluate your case and determine what information is likely to be discoverable.

Are you involved in a dispute where a lawyer’s file might hold the answers? Mark R. Manceri, P.A. regularly handles these evidentiary issues in Broward County probate courts. Schedule a confidential consultation today.

Source:

flsenate.gov/Laws/Statutes/2026/90.502