2005 Florida Code - ESTATES AND TRUSTS FLORIDA UNIFORM DISCLAIMER OF PROPERTY INTERESTS ACTChapter 739

CHAPTER 739

FLORIDA UNIFORM DISCLAIMER OF PROPERTY INTERESTS ACT

739.101  Short title.

739.102  Definitions.

739.103  Scope.

739.104  Power to disclaim; general requirements; when irrevocable.

739.201  Disclaimer of interest in property.

739.202  Disclaimer of rights of survivorship in jointly held property.

739.203  Disclaimer of property held as tenancy by the entirety.

739.204  Disclaimer of interest by trustee.

739.205  Disclaimer of power of appointment or other power not held in a fiduciary capacity.

739.206  Disclaimer by appointee, object, or taker in default of exercise of power of appointment.

739.207  Disclaimer of power held in fiduciary capacity.

739.301  Delivery or filing.

739.401  When disclaimer is permitted.

739.402  When disclaimer is barred or limited.

739.501  Tax-qualified disclaimer.

739.601  Recording of disclaimer relating to real estate.

739.701  Application to existing relationships.

739.101  Short title.--This chapter may be cited as the "Florida Uniform Disclaimer of Property Interests Act."

History.--s. 1, ch. 2005-108.

739.102  Definitions.--As used in this chapter, the term:

(1)  "Benefactor" means the creator of the interest that is subject to a disclaimer.

(2)  "Beneficiary designation" means an instrument, other than an instrument creating or amending a trust, naming the beneficiary of:

(a)  An annuity or insurance policy;

(b)  An account with a designation for payment on death;

(c)  A security registered in beneficiary form;

(d)  A pension, profit-sharing, retirement, or other employment-related benefit plan; or

(e)  Any other nonprobate transfer at death.

(3)  "Disclaimant" means the person to whom a disclaimed interest or power would have passed had the disclaimer not been made.

(4)  "Disclaimed interest" means the interest that would have passed to the disclaimant had the disclaimer not been made.

(5)  "Disclaimer" means the refusal to accept an interest in or power over property. The term includes a renunciation.

(6)  "Fiduciary" means a personal representative, trustee, agent acting under a power of attorney, guardian, or other person authorized to act as a fiduciary with respect to the property of another person.

(7)  "Future interest" means an interest that takes effect in possession or enjoyment, if at all, later than the time of its creation.

(8)  "Insolvent" means that the sum of a person's debts is greater than all of the person's assets at fair valuation. A person is presumed to be "insolvent" if the person is generally not paying his or her debts as they become due.

(9)  "Jointly held property" means property held in the names of two or more persons under an arrangement in which all holders have concurrent interests and under which the last surviving holder is entitled to the whole of the property. Jointly held property does not include property held as tenants by the entirety.

(10)  "Person" includes individuals, ascertained and unascertained, living or not living, whether entitled to an interest by right of intestacy or otherwise; a government, governmental subdivision, agency, or instrumentality; and a public corporation.

(11)  "Time of distribution" means the time when a disclaimed interest would have taken effect in possession or enjoyment.

(12)  "Trust" means:

(a)  An express trust (including an honorary trust or a trust under s. 737.116), charitable or noncharitable, with additions thereto, whenever and however created; and

(b)  A trust created pursuant to a statute, judgment, or decree which requires the trust be administered in the manner of an express trust.

As used in this chapter, the term "trust" does not include a constructive trust or a resulting trust.

History.--s. 1, ch. 2005-108.

739.103  Scope.--This chapter applies to disclaimers of any interest in or power over property, whenever created. Except as provided in s. 739.701, this chapter is the exclusive means by which a disclaimer may be made under Florida law.

History.--s. 1, ch. 2005-108.

739.104  Power to disclaim; general requirements; when irrevocable.--

(1)  A person may disclaim, in whole or in part, conditionally or unconditionally, any interest in or power over property, including a power or appointment. A person may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim. A disclaimer shall be unconditional unless the disclaimant explicitly provides otherwise in the disclaimer.

(2)  With court approval, a fiduciary may disclaim, in whole or part, any interest in or power over property, including a power of appointment. Without court approval, a fiduciary may disclaim, in whole or in part, any interest in or power over property, including a power of appointment, if and to the extent that the instrument creating the fiduciary relationship explicitly grants the fiduciary the right to disclaim. In the absence of a court-appointed guardian, notwithstanding anything in chapter 744 to the contrary, without court approval, a natural guardian under s. 744.301 may disclaim on behalf of a minor child of the natural guardian, in whole or in part, any interest in or power over property, including a power of appointment, which the minor child is to receive solely as a result of another disclaimer, but only if the disclaimed interest or power does not pass to or for the benefit of the natural guardian as a result of the disclaimer.

(3)  To be effective, a disclaimer must be in writing, declare the writing as a disclaimer, describe the interest or power disclaimed, and be signed by the person making the disclaimer and witnessed and acknowledged in the manner provided for deeds of real estate to be recorded in this state. In addition, for a disclaimer to be effective, an original of the disclaimer must be delivered or filed in the manner provided in s. 739.301.

(4)  A partial disclaimer may be expressed as a fraction, percentage, monetary amount, term of years, limitation of a power, or any other interest or estate in the property.

(5)  A disclaimer becomes irrevocable when any conditions to which the disclaimant has made the disclaimer subject are satisfied and when the disclaimer is delivered or filed pursuant to s. 739.301 or it becomes effective as provided in ss. 739.201-739.207, whichever occurs later.

(6)  A disclaimer made under this chapter is not a transfer, assignment, or release.

History.--s. 1, ch. 2005-108.

739.201  Disclaimer of interest in property.--Except for a disclaimer governed by s. 739.202, s. 739.203, or s. 739.204, the following rules apply to a disclaimer of an interest in property:

(1)  The disclaimer takes effect as of the time the instrument creating the interest becomes irrevocable or, if the interest arose under the law of intestate succession, as of the time of the intestate's death.

(2)  The disclaimed interest passes according to any provision in the instrument creating the interest providing explicitly for the disposition of the interest, should it be disclaimed, or of disclaimed interests in general.

(3)  If the instrument does not contain a provision described in subsection (2), the following rules apply:

(a)  If the disclaimant is an individual, the disclaimed interest passes as if the disclaimant had died immediately before the interest was created, unless under the governing instrument or other applicable law the disclaimed interest is contingent on surviving to the time of distribution, in which case the disclaimed interest passes as if the disclaimant had died immediately before the time for distribution. However, if, by law or under the governing instrument, the descendants of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died before the time of distribution, the disclaimed interest passes only to the descendants of the disclaimant who survive the time of distribution. For purposes of this subsection, a disclaimed interest is created at the death of the benefactor or such earlier time, if any, that the benefactor's transfer of the interest is a completed gift for federal gift tax purposes. Also for purposes of this subsection, a disclaimed interest in a trust described in s. 733.707(3) shall pass as if the interest had been created under a will.

(b)  If the disclaimant is not an individual, the disclaimed interest passes as if the disclaimant did not exist.

(c)  Upon the disclaimer of a preceding interest, a future interest held by a person other than the disclaimant takes effect as if the disclaimant had died or ceased to exist immediately before the time of distribution, but a future interest held by the disclaimant is not accelerated in possession or enjoyment as a result of the disclaimer.

History.--s. 1, ch. 2005-108.

739.202  Disclaimer of rights of survivorship in jointly held property.--

(1)  Upon the death of a holder of jointly held property:

(a)  If, during the deceased holder's lifetime, the deceased holder could have unilaterally regained a portion of the property attributable to the deceased holder's contributions without the consent of any other holder, another holder may disclaim, in whole or in part, a fractional share of that portion of the property attributable to the deceased holder's contributions determined by dividing the number one by the number of joint holders alive immediately after the death of the holder to whose death the disclaimer relates.

(b)  For all other jointly held property, another holder may disclaim, in whole or in part, a fraction of the whole of the property the numerator of which is one and the denominator of which is the product of the number of joint holders alive immediately before the death of the holder to whose death the disclaimer relates multiplied by the number of joint holders alive immediately after the death of the holder to whose death the disclaimer relates.

(2)  A disclaimer under subsection (1) takes effect as of the death of the holder of jointly held property to whose death the disclaimer relates.

(3)  An interest in jointly held property disclaimed by a surviving holder of the property passes as if the disclaimant predeceased the holder to whose death the disclaimer relates.

History.--s. 1, ch. 2005-108.

739.203  Disclaimer of property held as tenancy by the entirety.--

(1)  The survivorship interest in property held as a tenancy by the entirety to which the survivor succeeds by operation of law upon the death of the cotenant may be disclaimed as provided in this chapter. For purposes of this chapter only, the deceased tenant's interest in property held as a tenancy by the entirety shall be deemed to be an undivided one-half interest.

(2)  A disclaimer under subsection (1) takes effect as of the death of the deceased tenant to whose death the disclaimer relates.

(3)  The survivorship interest in property held as a tenancy by the entirety disclaimed by the surviving tenant passes as if the disclaimant had predeceased the tenant to whose death the disclaimer relates.

(4)  A disclaimer of an interest in real property held as tenants by the entirety does not cause the disclaimed interest to be homestead property for purposes of descent and distribution under ss. 732.401 and 732.4015.

History.--s. 1, ch. 2005-108.

739.204  Disclaimer of interest by trustee.--If a trustee having the power to disclaim under the instrument creating the fiduciary relationship or pursuant to court order disclaims an interest in property that otherwise would have become trust property, the interest does not become trust property.

History.--s. 1, ch. 2005-108.

739.205  Disclaimer of power of appointment or other power not held in a fiduciary capacity.--If a holder disclaims a power of appointment or other power not held in a fiduciary capacity, the following rules apply:

(1)  If the holder has not exercised the power, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable.

(2)  If the holder has exercised the power and the disclaimer is of a power other than a presently exercisable general power of appointment, the disclaimer takes effect immediately after the last exercise of the power.

(3)  The instrument creating the power is construed as if the power expired when the disclaimer became effective.

History.--s. 1, ch. 2005-108.

739.206  Disclaimer by appointee, object, or taker in default of exercise of power of appointment.--

(1)  A disclaimer of an interest in property by an appointee of a power of appointment takes effect as of the time the instrument by which the holder exercises the power becomes irrevocable.

(2)  A disclaimer of an interest in property by an object, or taker in default of an exercise of a power of appointment, takes effect as of the time the instrument creating the power becomes irrevocable.

History.--s. 1, ch. 2005-108.

739.207  Disclaimer of power held in fiduciary capacity.--

(1)  If a fiduciary disclaims a power held in a fiduciary capacity which has not been exercised, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable.

(2)  If a fiduciary disclaims a power held in a fiduciary capacity which has been exercised, the disclaimer takes effect immediately after the last exercise of the power.

(3)  A disclaimer under this section is effective as to another fiduciary if the disclaimer so provides and the fiduciary disclaiming has the authority to bind the estate, trust, or other person for whom the fiduciary is acting.

History.--s. 1, ch. 2005-108.

739.301  Delivery or filing.--

(1)  Subject to subsections (2) through (12), delivery of a disclaimer may be effected by personal delivery, first-class mail, or any other method that results in its receipt. A disclaimer sent by first-class mail shall be deemed to have been delivered on the date it is postmarked. Delivery by any other method shall be effective upon receipt by the person to whom the disclaimer is to be delivered under this section.

(2)  In the case of a disclaimer of an interest created under the law of intestate succession or an interest created by will, other than an interest in a testamentary trust:

(a)  The disclaimer must be delivered to the personal representative of the decedent's estate; or

(b)  If no personal representative is serving when the disclaimer is sought to be delivered, the disclaimer must be filed with the clerk of the court in any county where venue of administration would be proper.

(3)  In the case of a disclaimer of an interest in a testamentary trust:

(a)  The disclaimer must be delivered to the trustee serving when the disclaimer is delivered or, if no trustee is then serving, to the personal representative of the decedent's estate; or

(b)  If no personal representative is serving when the disclaimer is sought to be delivered, the disclaimer must be filed with the clerk of the court in any county where venue of administration of the decedent's estate would be proper.

(4)  In the case of a disclaimer of an interest in an inter vivos trust:

(a)  The disclaimer must be delivered to the trustee serving when the disclaimer is delivered;

(b)  If no trustee is then serving, it must be filed with the clerk of the court in any county where the filing of a notice of trust would be proper; or

(c)  If the disclaimer is made before the time the instrument creating the trust becomes irrevocable, the disclaimer must be delivered to the grantor of the revocable trust or the transferor of the interest or to such person's legal representative.

(5)  In the case of a disclaimer of an interest created by a beneficiary designation made before the time the designation becomes irrevocable, the disclaimer must be delivered to the person making the beneficiary designation or to such person's legal representative.

(6)  In the case of a disclaimer of an interest created by a beneficiary designation made after the time the designation becomes irrevocable, the disclaimer must be delivered to the person obligated to distribute the interest.

(7)  In the case of a disclaimer by a surviving holder of jointly held property, or by the surviving tenant in property held as a tenancy by the entirety, the disclaimer must be delivered to the person to whom the disclaimed interest passes or, if such person cannot reasonably be located by the disclaimant, the disclaimer must be delivered as provided in subsection (2).

(8)  In the case of a disclaimer by an object, or taker in default of exercise, of a power of appointment at any time after the power was created:

(a)  The disclaimer must be delivered to the holder of the power or to the fiduciary acting under the instrument that created the power; or

(b)  If no fiduciary is serving when the disclaimer is sought to be delivered, the disclaimer must be filed with a court having authority to appoint the fiduciary.

(9)  In the case of a disclaimer by an appointee of a nonfiduciary power of appointment:

(a)  The disclaimer must be delivered to the holder, the personal representative of the holder's estate, or the fiduciary under the instrument that created the power; or

(b)  If no fiduciary is serving when the disclaimer is sought to be delivered, the disclaimer must be filed with a court having authority to appoint the fiduciary.

(10)  In the case of a disclaimer by a fiduciary of a power over a trust or estate, the disclaimer must be delivered as provided in subsection (2), subsection (3), or subsection (4) as if the power disclaimed were an interest in property.

(11)  In the case of a disclaimer of a power exercisable by an agent, other than a power exercisable by a fiduciary over a trust or estate, the disclaimer must be delivered to the principal or the principal's representative.

(12)  Notwithstanding subsection (1), delivery of a disclaimer of an interest in or relating to real estate shall be presumed upon the recording of the disclaimer in the office of the clerk of the court of the county or counties where the real estate is located.

(13)  A fiduciary or other person having custody of the disclaimed interest is not liable for any otherwise proper distribution or other disposition made without actual notice of the disclaimer or, if the disclaimer is barred under s. 739.402, for any otherwise proper distribution or other disposition made in reliance on the disclaimer, if the distribution or disposition is made without actual knowledge of the facts constituting the bar of the right to disclaim.

History.--s. 1, ch. 2005-108.

739.401  When disclaimer is permitted.--A disclaimer may be made at any time unless barred under s. 739.402.

History.--s. 1, ch. 2005-108.

739.402  When disclaimer is barred or limited.--

(1)  A disclaimer is barred by a written waiver of the right to disclaim.

(2)  A disclaimer of an interest in property is barred if any of the following events occur before the disclaimer becomes effective:

(a)  The disclaimer accepts the interest sought to be disclaimed;

(b)  The disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers the interest sought to be disclaimed or contracts to do so;

(c)  The interest sought to be disclaimed is sold pursuant to a judicial sale; or

(d)  The disclaimant is insolvent when the disclaimer becomes irrevocable.

(3)  A disclaimer, in whole or in part, of the future exercise of a power held in a fiduciary capacity is not barred by its previous exercise.

(4)  A disclaimer, in whole or in part, of the future exercise of a power not held in a fiduciary capacity is not barred by its previous exercise unless the power is exercisable in favor of the disclaimant.

(5)  A disclaimer of an interest in, or a power over, property which is barred by this section is ineffective.

History.--s. 1, ch. 2005-108.

739.501  Tax-qualified disclaimer.--Notwithstanding any other provision of this chapter, if, as a result of a disclaimer or transfer, the disclaimed or transferred interest is treated pursuant to the provisions of s. 2518 of the Internal Revenue Code of 1986 as never having been transferred to the disclaimant, the disclaimer or transfer is effective as a disclaimer under this chapter.

History.--s. 1, ch. 2005-108.

739.601  Recording of disclaimer relating to real estate.--

(1)  A disclaimer of an interest in or relating to real estate does not provide constructive notice to all persons unless the disclaimer contains a legal description of the real estate to which the disclaimer relates and unless the disclaimer is filed for recording in the office of the clerk of the court in the county or counties where the real estate is located.

(2)  An effective disclaimer meeting the requirements of subsection (1) constitutes constructive notice to all persons from the time of filing. Failure to record the disclaimer does not affect its validity as between the disclaimant and persons to whom the property interest or power passes by reason of the disclaimer.

History.--s. 1, ch. 2005-108.

739.701  Application to existing relationships.--Except as otherwise provided in s. 739.402, an interest in or power over property existing on July 1, 2005, as to which the time for delivering or filing a disclaimer under laws superseded by this chapter has not expired, may be disclaimed after July 1, 2005.

History.--s. 1, ch. 2005-108.

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