A beneficiary of an estate has the ability to refuse to accept or inherit by executing a “Disclaimer.” Under UPC Section 2-1106(b)(3), “a person who disclaims is treated as having predeceased the decedent for the purposes of distributing the decedent’s estate.” A disclaimer may be of all or a portion of the property being left to the beneficiary.
Through the action of disclaiming, the “relation back doctrine” is triggered. The Relation Back Doctrine simply states that the disclaimer predeceased the decedent and never garnered possession of the property left by the decedent. The Relation Back Doctrine is vital because if the disclaimant were not deemed predeceased and treated as possessing the property before giving it away, the disclaimant has a strong possibility of having to pay a gift tax on the gift or even worse, could be taken by the disclaimant’s creditors.
A caveat to the disclaimant, the individual may not select the alternate taker(s) for the disclaimed property. This means, the property the disclaimant was supposed to receive passes to the next eligible taker under the decedent’s will or by priority under the intestacy statutes. Most times, the disclaimant knows who the next eligible person is, and that knowledge plays a key role in deciding whether to disclaim or not to disclaim.
Under UPC Section 2-1107 through 2-111, an individual can disclaim more than just assets: one can also disclaim rights of survivorship, powers of appointment, and fiduciary duties. However, under UPC Section 2-1105(e), once an individual makes a valid disclaimer, the disclaimer is irrevocable.
Counterpoint to a disclaimer, under UPC Section 2-113, Comment “a disclaimer by an insolvent heir or beneficiary might be considered a fraudulent transfer.” In addition, some jurisdictions prohibit a disclaimer that would be used to ensure that the heir or beneficiary qualifies for Medicaid or other forms of public assistance.
Lastly, many states along with Internal Revenue Code (for gift tax purposes), require disclaimers to be made within nine (9) months of the decedent’s death. The UPC does not impose a time limit on disclaimers, it does provide that an heir or beneficiary forfeit the right to disclaim by accepting property from a decedent’s estate or trust.
Before disclaiming, it is best to speak to an attorney to ensure that you are making the proper decision and to ensure that your disclaimer is filed properly.