2004 Florida Statutes
Disclaimer of interests in property passing under certain nontestamentary instruments or under certain powers of appointment.
(a) "Beneficiary" means any person who becomes entitled to an interest in property in any manner described in subsection (2).
(b) "Grantor" means the person by whom an interest in property was created.
(c) "Power of appointment" means any power described in subparagraph (d)3.
(d) An "interest in property" which may be disclaimed shall include:
1. The whole of any property, real or personal, legal or equitable, or any fractional part, share, or portion of property, or specific assets thereof;
2. Any estate in such property; or
3. Any power to appoint, consume, apply, or expend property or any other right, power, privilege, or immunity relating thereto.
(2) SCOPE OF RIGHT TO DISCLAIM.--
(a) A beneficiary may disclaim any interest in property which would pass (unless disclaimed) to the beneficiary:
1. As donee;
2. As grantee;
3. Under any deed, assignment, or other nontestamentary instrument of conveyance or transfer;
4. As beneficiary of an inter vivos trust;
5. As beneficiary of an insurance contract;
6. Through exercise or nonexercise of a power of appointment exercisable by deed;
7. Through nontestamentary exercise of a power of appointment exercisable by deed or will;
8. As donee of a power of appointment created by a nontestamentary instrument;
9. By succession in any manner described in this subsection to a disclaimed interest; or
10. In any other manner not specifically enumerated herein under a nontestamentary instrument.
(b) Disclaimer may be made for a minor, incompetent, or deceased beneficiary by the guardian or personal representative if the circuit court having jurisdiction of the estate of such minor, incompetent, or deceased beneficiary, after hearing upon petition filed by the guardian, personal representative, or other interested person and served upon such persons and in such manner as the judge shall direct, finds that it is in the best interests of those interested in the estate of such beneficiary, and of those who take the beneficiary's interest by virtue of the disclaimer, and not detrimental to the best interests of the beneficiary, to make the disclaimer. If so ordered by the circuit court, the guardian or personal representative shall execute and file the disclaimer on behalf of the beneficiary within the time and in the manner in which the beneficiary herself or himself could disclaim if she or he were living, of legal age, and competent.
(3) DISPOSITION OF DISCLAIMED INTERESTS.--
(a) Unless the grantor, or a donee of a power of appointment, has otherwise provided by a nontestamentary 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 which causes her or him to become finally ascertained as a beneficiary and her or his interest to become indefeasibly fixed both in quality and quantity, and, in any case, the disclaimer shall relate for all purposes to such date, whether filed before or after such death or other event. An interest in property disclaimed shall never vest in the disclaimant.
(b) A beneficiary who disclaims any interest which would pass to her or him in any manner described in paragraph (2)(a) shall not be excluded, unless her or his disclaimer instrument so provides, from sharing in any other interest to which she or he may be entitled in any manner described in this section, including subparagraph (2)(a)9., even though such interest includes, by virtue of the beneficiary's disclaimer, disclaimed assets.
(4) FORM, FILING, RECORDING, AND SERVICE OF DISCLAIMER INSTRUMENTS.--
(a) Any writing to be a disclaimer shall:
1. Declare the disclaimer and its extent;
2. Describe the interest in property disclaimed; and
3. Be signed, witnessed, and acknowledged in the manner provided for deeds of real estate.
(b) A disclaimer shall be effective and irrevocable when the instrument is filed for recording in the office of any circuit court in this state.
(c) A copy of the disclaimer instrument shall be delivered by hand or by certified mail to the personal representative, trustee, or other person having legal title to or possession of the property in which the disclaimed interest exists. No such representative, trustee, or other person shall be liable for any otherwise proper distribution or other disposition made without actual notice of the disclaimer, or, in the event such disclaimer is waived or barred as hereinafter provided, for any otherwise proper distribution or other disposition made in reliance on such disclaimer, provided such distribution or disposition is made without actual notice of the facts constituting the waiver or barring the right to disclaim.
(d) If an interest in or relating to real estate is disclaimed, a certified copy of the disclaimer instrument shall be filed in the office of the clerk of the circuit court of the county or counties wherein the real estate is located for recording, and shall constitute notice to all persons from the time of filing.
(5) TIME IN WHICH DISCLAIMER SHALL BE MADE.--A disclaimer shall be filed for recording at any time after the creation of the interest but, in any event, within 12 months after the effective date of the nontestamentary instrument creating the interest, or, if the disclaimant is not then finally ascertained as a beneficiary or her or his interest has not then become indefeasibly fixed both in quality and quantity, such disclaimer shall be filed not later than 12 months after the event which would cause her or him so to become finally ascertained and her or his interest to become indefeasibly fixed both in quality and quantity. Nevertheless, for purposes of this section, the survivorship interest in a joint tenancy with rights of survivorship or the deceased tenant's interest in tenancy by the entirety property to which the survivor succeeds by operation of law upon death of the cotenant must be disclaimed within 9 months after the date of death of the deceased cotenant.
(6) WAIVER OR BAR TO RIGHT TO DISCLAIM.--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. Any voluntary assignment or transfer of, or contract to assign or transfer, or encumbrance of, an interest in real or personal property, or written waiver of the right to disclaim an interest in real or personal property, by any beneficiary, or any sale or other disposition of an interest in real or personal property pursuant to judicial process, made before she or he has filed a disclaimer as herein provided bars the right otherwise hereby conferred on such beneficiary to disclaim as to such interest. The acceptance, assignment, transfer, encumbrance, or written waiver of the right to disclaim, or 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; SPOUSE'S CONSENT.--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. If an interest in real estate is disclaimed, the wife of the disclaimant, if such wife has consented to the disclaimer in writing, shall thereupon be automatically debarred from dower in such real estate. Disclaimer by a married woman shall be effective without the joinder or consent of her husband.
(8) EFFECT ON RIGHTS OUTSIDE THIS SECTION.--This section shall not abridge the right of any person, apart from this section, to disclaim, renounce, alienate, release, or otherwise transfer or dispose of any interest in property under any existing or future rule of law.
(9) EFFECTIVE DATE.--Any interest in property coming into existence after October 1, 1971, and any interest in property which exists on October 1, 1971, but which has not then become indefeasibly fixed both in quality and quantity, or the beneficiary of which has not then become finally ascertained, may be disclaimed in the manner provided herein.
(10) EFFECT OF DISCLAIMER OF TENANCY BY THE ENTIRETY PROPERTY.--A disclaimer of an interest in real property held as tenants by the entirety shall not cause the disclaimed interest to be homestead property for purposes of descent and distribution under ss. 732.401 and 732.4015
(11) EXTENT OF DISCLAIMED INTEREST IN TENANCY BY THE ENTIRETY PROPERTY.--For the purposes of this section, the deceased tenant's interest in tenancy by the entirety property shall be deemed to be an undivided one-half interest.
History.--s. 1, ch. 71-31; s. 26, ch. 73-334; s. 759, ch. 97-102; s. 3, ch. 2002-233.