2006 New York Code - Renunciation Of Property Interests

 
  § 2-1.11 Renunciation of property interests
    (a) For purposes of this section:
    (1) The term "disposition" shall include a disposition created under a
  will or trust agreement including, without limitation, the granting of a
  power   of  appointment,  a  disposition  created  by  the  exercise  or
  nonexercise of a power of appointment, a distributive share under 4-1.1,
  a transfer created by a trust account as defined in  7-5.1,  a  transfer
  created by a life insurance or annuity contract, a transfer created by a
  joint  tenancy  or tenancy by the entirety, a transfer under an employee
  benefit plan (including, without limitation,  any  pension,  retirement,
  death  benefit,  stock bonus or profit-sharing plan, system or trust), a
  transfer of a security to a beneficiary pursuant to part 4 of article 13
  of this chapter, any  other  disposition  or  transfer  created  by  any
  testamentary  or nontestamentary instrument, or by operation of law, and
  any of the foregoing created or increased by reason  of  a  renunciation
  made by another person.
    (2) The effective date of the disposition for purposes of this section
  shall be:
    A.  If the disposition is created by will, the exercise or nonexercise
  of a testamentary power  of  appointment,  a  distribution  pursuant  to
  4-1.1,  the  deposit  of money in a trust account as defined in 7-5.1, a
  life insurance or annuity contract, a joint tenancy or  tenancy  by  the
  entirety, or an employee benefit plan, the date of death of the deceased
  testator,  holder of the power of appointment, intestate, creator of the
  trust account, insured, annuitant, other joint tenant or tenant  by  the
  entirety, or employee, as the case may be;
    B. If the disposition is created by trust agreement, the exercise of a
  presently  exercisable  power  of  appointment, or the renunciation of a
  disposition created  by  another,  the  date  of  the  trust  agreement,
  exercise  of  the power of appointment, or renunciation, as the case may
  be; and
    C. If  the  disposition  is  created  by  any  other  testamentary  or
  nontestamentary  instrument,  or  by  operation  of law, the date of the
  event by which the beneficiary is finally ascertained.
  Notwithstanding the foregoing, the effective date of a disposition which
  is of a future estate shall be the date on which it becomes an estate in
  possession.
    (b) (1) Any beneficiary of a disposition may renounce all or  part  of
  his interest; provided, however, that a surviving joint tenant or tenant
  by  the  entirety  may not renounce that portion of an interest in joint
  property or property held by the entirety which is allocable to  amounts
  contributed by him to the interest in such property.
    (2)  Such renunciation shall be in writing, signed and acknowledged by
  the person renouncing, and shall be filed in the office of the clerk  of
  the court having jurisdiction over the will or trust agreement governing
  the  property  of  which  the disposition would otherwise be made or the
  court which issued letters of administration, or if there is no  probate
  or  administration,  then  in a surrogate's court provided by law as the
  place of probate or administration of the decedent's estate, within nine
  months after the effective date of the  disposition.  Such  renunciation
  shall be accompanied by an affidavit of the renouncing party that he has
  not received and is not to receive any consideration in money or money's
  worth  for  such renunciation from a person or persons whose interest is
  to be  accelerated,  unless  payment  of  such  consideration  has  been
  authorized  by  the  court.  Notice  of  such  renunciation, which shall
  include a copy of the renunciation, shall be  served  personally  or  in
  such  manner  as the court may direct upon the fiduciary directed by the
  will  or  trust  agreement  to  make  the  disposition   or   upon   the
  administrator  or  such  other  person  who  was  directed  to  make the
  disposition or upon any other person having custody or possession of  or
  legal  title  to  the property, an interest in which is being renounced,
  and  by  mail or in such manner as the court may direct upon all persons
  whose  interest  may  be  created  or  increased  by  reason   of   such
  renunciation.  The  time  to  file  and  serve  such renunciation may be
  extended, in  the  discretion  of  the  court,  on  a  petition  showing
  reasonable cause and on notice to such persons and in such manner as the
  court  may  direct.  The  time  limited  in  this section for filing and
  serving such renunciation is exclusive, and shall not  be  suspended  or
  otherwise  affected  by  any  other  provision of law; such renunciation
  shall be effective as of the date of such filing,  notwithstanding  that
  notice thereof may thereafter be required by the court.
    (c) A renunciation may be made by:
    (1)  The  guardian of the property of an infant, when so authorized by
  the court having jurisdiction of the estate of the infant.
    (2) The committee of an incompetent when so authorized  by  the  court
  that appointed the committee.
    (3)  The conservator of a conservatee, when so authorized by the court
  that appointed the conservator.
    (4) A guardian  appointed  under  article  eighty-one  of  the  mental
  hygiene  law,  when  so  authorized  by  the  court  that  appointed the
  guardian.
    (5) The personal representative of a decedent, when so  authorized  by
  the court having jurisdiction of the estate of the decedent.
    (6)  An  attorney-in-fact,  when  so  authorized under a duly executed
  power of attorney,  provided,  however,  that  any  renunciation  by  an
  attorney-in-fact  of  a  person  under disability shall not be effective
  unless it is further authorized by the court with which the renunciation
  must be filed under subparagraph two of paragraph (b) of  this  section,
  and  provided,  further, that a renunciation by an attorney-in-fact of a
  person not under disability may be  made  without  court  authorization,
  unless  the property which would have passed under said renunciation is,
  by  reason  of  said  renunciation,  disposed  of  in  favor   of   such
  attorney-in-fact  or  the  spouse  or issue of such attorney-in-fact, in
  which case such renunciation shall not be effective  unless  either  (A)
  the  instrument  appointing such attorney-in-fact expressly authorizes a
  renunciation in favor of such attorney-in-fact or the spouse or issue of
  such attorney-in-fact, or (B) such renunciation has been  authorized  by
  the  court  with which the renunciation must be filed under subparagraph
  two of paragraph (b).
    (d) Unless the creator of the disposition has otherwise provided,  the
  filing  of  a  renunciation,  as  provided in this section, has the same
  effect with respect to the renounced interest as though  the  renouncing
  person  had predeceased the creator or the decedent or, if the renounced
  interest is a future estate, as though the renouncing person had died at
  the time  of  filing  or  just  prior  to  its  becoming  an  estate  in
  possession,  whichever  is earlier in time, and shall have the effect of
  accelerating the possession and enjoyment of subsequent  interests,  but
  shall  have  no  effect upon the vesting of a future estate which by the
  terms of the disposition is limited upon a preceding estate  other  than
  the  renounced  interest.  If, pursuant to the preceding sentence, there
  would occur a per stirpes disposition of the  renounced  interest  or  a
  disposition or distribution of the renounced interest by representation,
  then  solely  for purposes of applying 1-2.14 or 1-2.16, as the case may
  be, the renouncing person shall be treated as having died  on  the  same
  date  as,  but  immediately  after,  the  creator or decedent or, if the
  renounced interest is a future estate, as having died on the  same  date
  as,  but  immediately after, its becoming an estate in possession or, if
  the time of filing is  earlier  in  time,  on  the  same  date  as,  but
  immediately  after, such filing. Such renunciation is retroactive to the
  creation  of  the  disposition.  A person who has a present and a future
  interest in property and renounces the present interest in whole  or  in
  part  shall  be deemed to have renounced the future interest to the same
  extent.
    (e) A beneficiary may accept one disposition and renounce another, may
  renounce a disposition in  whole  or  in  part,  or  with  reference  to
  specific   amounts,   parts,   fractional   shares  or  assets  thereof.
  Notwithstanding the provisions of  paragraph  (d)  of  this  section,  a
  renunciation  by  a  surviving  spouse  of  a  decedent of a disposition
  created by said decedent shall not be deemed to  be  a  renunciation  by
  such  spouse  of all or any part of any other disposition to or in favor
  of such spouse, regardless of whether  the  property  which  would  have
  passed   under   said   renounced  disposition  is  by  reason  of  said
  renunciation disposed of to  or  in  favor  of  such  spouse.  Unless  a
  renouncing person has provided otherwise in his renunciation, the effect
  of  a  renunciation of a fractional part of a disposition is to renounce
  such fraction of all property to which the renouncing person is entitled
  under the disposition.
    (f) A renunciation may not be made under this section with respect  to
  any  property  which  a  renouncing  person has accepted, except that an
  acceptance does not preclude a person from renouncing all or part of any
  property to which he becomes  entitled  when  another  person  renounces
  after  such acceptance. For purposes of this paragraph, a person accepts
  an interest in property if he voluntarily  transfers  or  encumbers,  or
  contracts  to  transfer  or  encumber  all  or part of such interest, or
  accepts delivery or payment of, or exercises control as beneficial owner
  over all or part thereof, or executes a written waiver of the  right  to
  renounce,  or  otherwise  indicates  acceptance  of  all or part of such
  interest. A written waiver of the right to renounce shall be binding  on
  the person waiving and all parties claiming by, through or under him.
    (g) A renunciation filed under this section is irrevocable.
    (h) This section shall not abridge the right of any beneficiary or any
  other  person  to  assign,  convey,  release or renounce any property or
  interest therein arising under any other  section  of  this  chapter  or
  other statute or under common law.
    (i) Except as specifically provided in the trust instrument, the will,
  any  other instrument creating the disposition, or in this section, this
  section shall apply to each disposition the effective date of which  (as
  defined  in  this  section)  is  on  or after the effective date of this
  section, except that with  respect  to  the  renunciation  of  a  future
  interest  this  section  shall  apply as well to dispositions created or
  increased prior to the effective date of this section.
    (j) In determining whether or not a valid disclaimer has been made for
  the  purposes  of  the  taxes  imposed  by   articles   twenty-six   and
  twenty-six-A  of  the  tax  law,  the  provisions  of  such law shall be
  applicable to such determination, notwithstanding any provisions to  the
  contrary contained in this section or any other section of this chapter.