The Florida Senate

732.801  Disclaimer of interests in property passing by will or intestate succession or under certain powers of appointment.--

(1)  DEFINITIONS.--For purposes of this section:

(a)  "Beneficiary" means a person who would succeed to an interest in property in any manner described in subsection (2).

(b)  "Decedent" means the person by whom an interest in property was created or from whom it would have been received by a beneficiary.

(c)  "Power of appointment" means any power described in subparagraph (d)3.

(d)  An "interest in property" that may be disclaimed shall include:

1.  The whole of any property, real or personal, legal or equitable, present or future interest, or any fractional part, share, or portion of property or specific assets thereof.

2.  Any estate in the property.

3.  Any power to appoint, consume, apply, or expend property, or any other right, power, privilege, or immunity relating to it.

(2)  SCOPE OF RIGHT TO DISCLAIM.--

(a)  A beneficiary may disclaim his or her succession to any interest in property that, unless disclaimed, would pass to the beneficiary:

1.  By intestate succession or devise.

2.  Under descent of homestead, exempt property, or family allowance or under s. 222.13.

3.  Through exercise or nonexercise of a power of appointment exercisable by will.

4.  Through testamentary exercise or nonexercise of a power of appointment exercisable by either deed or will.

5.  As beneficiary of a testamentary trust.

6.  As a beneficiary of a testamentary gift to any nontestamentary trust.

7.  As donee of a power of appointment created by will.

8.  By succession in any manner described in this subsection to a disclaimed interest.

9.  In any manner not specifically enumerated herein under a testamentary instrument.

(b)  Disclaimer may be made for a minor, incompetent, incapacitated person, or deceased beneficiary by the guardian or personal representative if the court having jurisdiction of the estate of the minor, incompetent, incapacitated person, or deceased beneficiary finds that the disclaimer:

1.  Is in the best interests of those interested in the estate of the beneficiary and of those who take the beneficiary's interest by virtue of the disclaimer and

2.  Is not detrimental to the best interests of the beneficiary.

The determination shall be made on a petition filed for that purpose and served on all interested persons. If ordered by the court, the guardian or personal representative shall execute and record the disclaimer on behalf of the beneficiary within the time and in the manner in which the beneficiary could disclaim if he or she were living, of legal age, and competent.

(3)  DISPOSITION OF DISCLAIMED INTERESTS.--

(a)  Unless the decedent or a donee of a power of appointment has otherwise provided by will or other appropriate instrument with reference to the possibility of a disclaimer by the beneficiary, the interest disclaimed shall descend, be distributed, or otherwise be disposed of in the same manner as if the disclaimant had died immediately preceding the death or other event that caused him or her to become finally ascertained as a beneficiary and the disclaimant's interest to become indefeasibly fixed both in quality and quantity. The disclaimer shall relate to that date for all purposes, whether recorded before or after the death or other event. An interest in property disclaimed shall never vest in the disclaimant. If the provisions of s. 732.603 would have been applicable had the disclaimant in fact died immediately preceding the death or other event, they shall be applicable to the disclaimed interest.

(b)  Unless his or her disclaimer instrument so provides, a beneficiary who disclaims any interest that would pass to him or her in any manner described in subsection (2) shall not be excluded from sharing in any other interest to which he or she may be entitled in any manner described in the subsection, including subparagraph (2)(a)8., even though the interest includes disclaimed assets by virtue of the beneficiary's disclaimer.

(4)  FORM, FILING, RECORDING, AND SERVICE OF DISCLAIMER INSTRUMENTS.--

(a)  To be a disclaimer, a writing shall declare the disclaimer and its extent, describe the interest in property disclaimed, and be signed, witnessed, and acknowledged in the manner provided for the conveyance of real property.

(b)  A disclaimer shall be effective and irrevocable when the instrument is recorded by the clerk where the estate of the decedent is or has been administered. If no administration has been commenced, recording may be made with the clerk of any county where venue of administration is proper.

(c)  The person disclaiming shall deliver or mail a copy of the disclaimer instrument to the personal representative, trustee, or other person having legal title to, or possession of, the property in which the disclaimed interest exists. No representative, trustee, or other person shall be liable for any otherwise proper distribution or other disposition made without actual notice of the disclaimer or, if the disclaimer is waived or barred as hereinafter provided, for any otherwise proper distribution or other disposition made in reliance on the disclaimer, if the distribution or disposition is made without actual notice of the facts constituting the waiver or barring the right to disclaim.

(5)  TIME FOR RECORDING DISCLAIMER.--A disclaimer shall be recorded at any time after the creation of the interest, but in any event within 9 months after the event giving rise to the right to disclaim, including the death of the decedent; or, if the disclaimant is not finally ascertained as a beneficiary or the disclaimant's interest has not become indefeasibly fixed both in quality and quantity at the death of the decedent, then the disclaimer shall be recorded not later than 6 months after the event that would cause him or her to become finally ascertained and his or her interest to become indefeasibly fixed both in quality and quantity. However, a disclaimer may be recorded at any time after the creation of the interest, upon the written consent of all interested parties as provided in s. 731.302.

(6)  WAIVER OR BAR TO RIGHT TO DISCLAIM.--

(a)  The right to disclaim otherwise conferred by this section shall be barred if the beneficiary is insolvent at the time of the event giving rise to the right to disclaim and also by:

1.  Making a voluntary assignment or transfer of, a contract to assign or transfer, or an encumbrance of, an interest in real or personal property.

2.  Giving a written waiver of the right to disclaim the succession to an interest in real or personal property.

3.  Making any sale or other disposition of an interest in real or personal property pursuant to judicial process by the beneficiary before he or she has recorded a disclaimer.

(b)  The acceptance, assignment, transfer, encumbrance, or written waiver of the right to disclaim a part of an interest in property, or the sale pursuant to judicial process of a part of an interest in property, shall not bar the right to disclaim any other part of the interest in property.

(7)  EFFECT OF RESTRAINTS.--The right to disclaim granted by this section shall exist irrespective of any limitation imposed on the interest of the disclaimant in the nature of an express or implied spendthrift provision or similar restriction.

(8)  RIGHT TO DISCLAIM UNDER OTHER LAW NOT ABRIDGED.--This law shall not abridge the right of any person to disclaim, renounce, alienate, release, or otherwise transfer or dispose of any interest in property under any other existing or future law.

History.--s. 1, ch. 74-106; s. 40, ch. 75-220; s. 15, ch. 77-87; s. 970, ch. 97-102.

Note.--Created from former s. 731.37.