Enrolled HB 287: Relating to the adoption of the Uniform Disclaimer of Property Interests Act, and to the disclaimer of property rights under the Uniform Probate Code.
00Enrolled HB 287 01 Relating to the adoption of the Uniform Disclaimer of Property Interests Act, and to the 02 disclaimer of property rights under the Uniform Probate Code. 03 _______________ 04 * Section 1. AS 13 is amended by adding a new chapter to read: 05 Chapter 70. Disclaimer of Property Interests. 06 Sec. 13.70.010. Scope. This chapter applies to disclaimers of any interest in or 07 power over property, whenever created. 08 Sec. 13.70.020. Supplemented by other law. (a) Unless displaced by a 09 provision of this chapter, the principles of law and equity supplement this chapter. 10 (b) This chapter does not limit any right of a person to waive, release, 11 disclaim, or renounce an interest in or power over property under a law other than this 12 chapter. 13 Sec. 13.70.030. Power to disclaim; general requirements; when 14 irrevocable. (a) A person may disclaim, in whole or part, conditionally or
01 unconditionally, any interest in or power over property, including a power of 02 appointment. A person may disclaim the interest or power even if its creator imposed a 03 spendthrift provision or similar restriction on transfer or a restriction, prohibition, or 04 limitation on the right to disclaim. A disclaimer shall be considered to be 05 unconditional and not subject to modification or revocation unless the disclaimant 06 provides otherwise in the disclaimer. 07 (b) With court approval, a fiduciary may disclaim, in whole or part, any 08 interest in or power over property, including a power of appointment. Without court 09 approval, a fiduciary may not disclaim, in whole or in part, any interest in or power 10 over property, including a power of appointment, except that 11 (1) a fiduciary may disclaim, in whole or in part, any interest in or 12 power over property, including a power of appointment, if and to the extent that the 13 instrument creating the fiduciary relationship grants the fiduciary the right to disclaim; 14 (2) in the absence of a court-appointed guardian, notwithstanding a 15 provision in AS 13.26 to the contrary, an individual having legal custody of a minor 16 child may disclaim on behalf of the minor child, in whole or in part, any interest in or 17 power over property, including a power of appointment, that the minor child is to 18 receive solely as a result of another disclaimer, but only if the interest or power 19 disclaimed by the individual having legal custody does not pass, as a result of the 20 disclaimer, to or for the benefit of the individual having legal custody. 21 (c) To be effective, a disclaimer must be in writing, declare that the writing is 22 a disclaimer, describe the interest or power disclaimed, be signed by the person 23 making the disclaimer, and be delivered or filed in the manner provided in 24 AS 13.70.100. 25 (d) A partial disclaimer may be expressed as a fraction, percentage, monetary 26 amount, term of years, limitation of a power, or any other interest or estate in the 27 property. 28 (e) A disclaimer becomes irrevocable when 29 (1) any conditions to which the disclaimant has made the disclaimer 30 subject are satisfied; and 31 (2) the disclaimer is delivered or filed under AS 13.70.100, or becomes
01 effective as provided in AS 13.70.040 - 13.70.090, whichever occurs later. 02 (f) A disclaimer made under this chapter is not a transfer, assignment, or 03 release. 04 Sec. 13.70.040. Disclaimer of interest in property. (a) Except for a disclaimer 05 governed by AS 13.70.050 - 13.70.065, the following rules apply to a disclaimer of an 06 interest in property: 07 (1) the disclaimer takes effect as of the time the instrument creating the 08 interest becomes irrevocable or, if the interest arose under the law of intestate 09 succession, as of the time of the intestate's death; 10 (2) the disclaimed interest passes according to any provision in the 11 instrument creating the interest providing for the disposition of the interest, should it 12 be disclaimed, or of disclaimed interests in general; 13 (3) if the instrument does not contain a provision described in (2) of 14 this subsection, the following rules apply: 15 (A) if the disclaimant is not an individual, the disclaimed 16 interest passes as if the disclaimant did not exist; 17 (B) if the disclaimant is an individual, except as otherwise 18 provided in (C) and (D) of this paragraph, the disclaimed interest passes as if 19 the disclaimant had died immediately before the interest was created, unless, 20 under the governing instrument or other applicable law, the disclaimed interest 21 is contingent on surviving to the time of distribution, in which case, the 22 disclaimed interest passes as if the disclaimant had died immediately before the 23 time for distribution; 24 (C) if, by law or under the instrument, the descendants of the 25 disclaimant would share in the disclaimed interest by any method of 26 representation had the disclaimant died before the time of distribution, the 27 disclaimed interest passes only to the descendants of the disclaimant who 28 survive the time of distribution; 29 (D) if the disclaimed interest would pass to the disclaimant's 30 estate had the disclaimant died before the time of distribution, the disclaimed 31 interest instead passes by representation to the descendants of the disclaimant
01 who survive the time of distribution; if no descendant of the disclaimant 02 survives the time of distribution, the disclaimed interest passes to those 03 persons, including the state but excluding the disclaimant, and in the shares as 04 would succeed to the transferor's intestate estate under the intestate succession 05 law of the transferor's domicile had the transferor died at the time of 06 distribution; however, if the transferor's surviving spouse is living but is 07 remarried at the time of distribution, the transferor is considered to have died 08 unmarried at the time of distribution; 09 (4) on the disclaimer of a preceding interest, a future interest held by a 10 person other than the disclaimant takes effect as if the disclaimant had died or ceased 11 to exist immediately before the time of distribution, but a future interest held by the 12 disclaimant is not accelerated in possession or enjoyment as a result of the disclaimer. 13 (b) For the purposes of (a)(3) of this section, a disclaimed interest 14 (1) is created at 15 (A) the death of the benefactor; or 16 (B) an earlier time, if any, when the benefactor's transfer of the 17 interest is a completed gift for federal gift tax purposes; and 18 (2) in a revocable trust is treated as if the interest had been created 19 under a will. 20 (c) In this section, 21 (1) "benefactor" means the creator of the interest that is subject to a 22 disclaimer; 23 (2) "future interest" means an interest that takes effect in possession or 24 enjoyment, if at all, later than the time of its creation; 25 (3) "time of distribution" means the time when a disclaimed interest 26 would have taken effect in possession or enjoyment. 27 Sec. 13.70.050. Disclaimer of rights of survivorship in jointly held 28 property. (a) On the death of a holder of jointly held property, a surviving holder may 29 disclaim, in whole or part, the greater of 30 (1) a fractional share of the property determined by dividing the 31 number one by the number of joint holders alive immediately before the death of the
01 holder to whose death the disclaimer relates; or 02 (2) all of the property except that part of the value of the entire interest 03 attributable to the contribution furnished by the disclaimant. 04 (b) A disclaimer under (a) of this section takes effect as of the death of the 05 holder of jointly held property to whose death the disclaimer relates. 06 (c) An interest in jointly held property disclaimed by a surviving holder of the 07 property passes as if the disclaimant predeceased the holder to whose death the 08 disclaimer relates. 09 Sec. 13.70.060. Disclaimer of interest in property held as a tenancy by the 10 entirety. (a) The survivorship interest in property that is held as a tenancy by the 11 entirety and to which the survivor succeeds by operation of law on the death of the 12 cotenant may be disclaimed as provided in this chapter. For the purposes of this 13 chapter only, the deceased tenant's interest in property held as a tenancy by the 14 entirety is considered to be an undivided one-half interest. 15 (b) A disclaimer under (a) of this section takes effect as of the death of the 16 deceased tenant to whose death the disclaimer relates. 17 (c) The survivorship interest in property held as a tenancy by the entirety and 18 disclaimed by the surviving tenant passes as if the disclaimant had predeceased the 19 tenant to whose death the disclaimer relates. 20 Sec. 13.70.065. Disclaimer of interest by trustee. If a trustee who has the 21 power to disclaim under a court order or under the instrument creating the fiduciary 22 relationship disclaims an interest in property that otherwise would have become trust 23 property, the interest does not become trust property. 24 Sec. 13.70.070. Disclaimer of power of appointment or other power not 25 held in fiduciary capacity. If a holder disclaims a power of appointment or other 26 power not held in a fiduciary capacity, the following rules apply: 27 (1) if the holder has not exercised the power, the disclaimer takes 28 effect as of the time the instrument creating the power becomes irrevocable; 29 (2) if the holder has exercised the power and the disclaimer is of a 30 power other than a presently exercisable general power of appointment, the disclaimer 31 takes effect immediately after the last exercise of the power;
01 (3) the instrument creating the power is construed as if the power 02 expired when the disclaimer became effective. 03 Sec. 13.70.080. Disclaimer by appointee, object, or taker in default of 04 exercise of power of appointment. (a) A disclaimer of an interest in property by an 05 appointee of a power of appointment takes effect as of the time the instrument by 06 which the holder exercises the power becomes irrevocable. 07 (b) A disclaimer of an interest in property by an object or taker in default of an 08 exercise of a power of appointment takes effect as of the time the instrument creating 09 the power becomes irrevocable. 10 Sec. 13.70.090. Disclaimer of power held in fiduciary capacity. (a) If a 11 fiduciary disclaims a power held in a fiduciary capacity that has not been exercised, 12 the disclaimer takes effect as of the time the instrument creating the power becomes 13 irrevocable. 14 (b) If a fiduciary disclaims a power held in a fiduciary capacity that has been 15 exercised, the disclaimer takes effect immediately after the last exercise of the power. 16 (c) A disclaimer under this section is effective as to another fiduciary if the 17 disclaimer so provides and the fiduciary disclaiming has the authority to bind the 18 estate, trust, or other person for whom the fiduciary is acting. 19 Sec. 13.70.100. Delivery or filing. (a) Subject to (b) - (l) of this section, 20 delivery of a disclaimer may be effected by personal delivery, first class mail, or any 21 other method likely to result in its receipt. A disclaimer sent by first class mail is 22 considered to have been delivered on the date it is postmarked. Delivery by personal 23 delivery or any other method is effective on receipt by the person to whom the 24 disclaimer is to be delivered under this section. 25 (b) In the case of an interest created under the law of intestate succession or an 26 interest created by will, other than an interest in a testamentary trust, 27 (1) a disclaimer shall be delivered to the personal representative of the 28 decedent's estate; or 29 (2) if a personal representative is not then serving, it shall be filed with 30 a court having jurisdiction to appoint the personal representative. 31 (c) In the case of an interest in a testamentary trust,
01 (1) a disclaimer shall be delivered to the trustee then serving, or if a 02 trustee is not then serving, to the personal representative of the decedent's estate; or 03 (2) if no personal representative is then serving, a disclaimer shall be 04 filed with a court having jurisdiction to enforce the trust. 05 (d) In the case of an interest in an inter vivos trust, 06 (1) a disclaimer shall be delivered to the trustee then serving; 07 (2) if no trustee is then serving, a disclaimer shall be filed with a court 08 having jurisdiction to enforce the trust; or 09 (3) if the disclaimer is made before the time the instrument creating the 10 trust becomes irrevocable, the disclaimer shall be delivered to the settlor of a 11 revocable trust or the transferor of the interest, or the legal representative of the settlor 12 or transferor. 13 (e) In the case of an interest created by a beneficiary designation made before 14 the time the designation becomes irrevocable, a disclaimer shall be delivered to the 15 person making the beneficiary designation. 16 (f) In the case of an interest created by a beneficiary designation made after 17 the time the designation becomes irrevocable, a disclaimer shall be delivered to the 18 person obligated to distribute the interest. 19 (g) In the case of a disclaimer by a surviving holder of jointly held property or 20 by the surviving tenant of property held as a tenancy by the entirety, the disclaimer 21 shall be delivered to the person to whom the disclaimed interest passes, or, if the 22 person cannot reasonably be located by the disclaimant, the disclaimer shall be 23 delivered as provided by (b) of this subsection. 24 (h) In the case of a disclaimer by an object or taker in default of exercise of a 25 power of appointment at any time after the power was created, 26 (1) the disclaimer shall be delivered to the holder of the power or to the 27 fiduciary acting under the instrument that created the power; or 28 (2) if no fiduciary is then serving, the disclaimer shall be filed with a 29 court having authority to appoint the fiduciary. 30 (i) In the case of a disclaimer by an appointee of a nonfiduciary power of 31 appointment,
01 (1) the disclaimer shall be delivered to the holder, the personal 02 representative of the holder's estate, or to the fiduciary under the instrument that 03 created the power; or 04 (2) if no fiduciary is then serving, the disclaimer shall be filed with a 05 court having authority to appoint the fiduciary. 06 (j) In the case of a disclaimer by a fiduciary of a power over a trust or estate, 07 the disclaimer shall be delivered as provided in (b) - (d) of this section, as if the power 08 disclaimed were an interest in property. 09 (k) In the case of a disclaimer of a power by an agent, except a power 10 exercisable by a fiduciary over a trust or estate, the disclaimer shall be delivered to the 11 principal or the principal's representative. 12 (l) When a disclaimer of an interest in or relating to real property is recorded 13 in the judicial district where the real property is located, there is a rebuttable 14 presumption that the disclaimer has been delivered. 15 (m) In this section, "beneficiary designation" means an instrument, other than 16 an instrument creating or amending a trust, naming the beneficiary of 17 (1) an annuity or insurance policy; 18 (2) an account with a designation for payment on death; 19 (3) a security registered in beneficiary form; 20 (4) a pension, profit-sharing, retirement, or other employment-related 21 benefit plan; or 22 (5) any other nonprobate transfer at death. 23 Sec. 13.70.110. When disclaimer permitted, barred, or limited. (a) A 24 disclaimer is permitted unless barred under (b) - (f) of this section. A disclaimer is 25 permitted even though the disclaimant is insolvent. 26 (b) A disclaimer is barred by a written waiver of the right to disclaim. 27 (c) A disclaimer of an interest in property is barred if any of the following 28 events occurs before the disclaimer becomes effective: 29 (1) the disclaimant accepts the interest sought to be disclaimed; 30 (2) the disclaimant voluntarily assigns, conveys, encumbers, pledges, 31 or transfers the interest sought to be disclaimed or contracts to assign, convey,
01 encumber, pledge, or transfer the interest sought to be disclaimed; or 02 (3) a judicial sale or a nonjudicial foreclosure sale of the interest 03 sought to be disclaimed occurs. 04 (d) A disclaimer, in whole or part, of the future exercise of a power held in a 05 fiduciary capacity is not barred by its previous exercise. 06 (e) A disclaimer, in whole or part, of the future exercise of a power not held in 07 a fiduciary capacity is not barred by its previous exercise unless the power is 08 exercisable in favor of the disclaimant. 09 (f) A disclaimer of an interest in or power over property under this chapter is 10 barred and is not effective 11 (1) to the extent the disclaimant is in arrears in child support payments; 12 or 13 (2) if the disclaimant is involved in a pending court or administrative 14 proceeding to establish or modify the disclaimant's child support obligation or to 15 establish whether the disclaimant is the biological father or mother of a child. 16 (g) A disclaimer of a power over property that is barred by this section is 17 ineffective. A disclaimer of an interest in property that is barred by this section takes 18 effect as a transfer of the interest disclaimed to the persons who would have taken the 19 interest under this chapter had the disclaimer not been barred. 20 Sec. 13.70.120. Tax-qualified disclaimer. (a) Notwithstanding any other 21 provision of this chapter, if, as a result of a disclaimer or transfer, the disclaimed or 22 transferred interest is treated under the provisions of 26 U.S.C. (Internal Revenue 23 Code) as never having been transferred to the disclaimant, then the disclaimer or 24 transfer is effective as a disclaimer under this chapter. In this section, "26 U.S.C. 25 (Internal Revenue Code)" includes 26 U.S.C. as amended, any successor statute to 26 26 U.S.C. or 26 U.S.C. as amended, and regulations adopted under 26 U.S.C., 26 U.S.C. 27 as amended, and any successor statute to 26 U.S.C. or 26 U.S.C. as amended. 28 (b) A tax-qualified disclaimer under 26 U.S.C. (Internal Revenue Code) is 29 subject to the time limits under 26 U.S.C., as amended, even though time limits are not 30 specified under this chapter. 31 Sec. 13.70.130. Recording of disclaimer. If an instrument transferring an
01 interest in or power over property subject to a disclaimer is required or permitted by 02 law to be filed, recorded, or registered, the disclaimer may be filed, recorded, or 03 registered as required or permitted by law. Failure to file, record, or register the 04 disclaimer does not affect its validity as between the disclaimant and persons to whom 05 the property interest or power passes by reason of the disclaimer. 06 Sec. 13.70.140. Application to existing relationships. Except as otherwise 07 provided in AS 13.70.110, an interest in or power over property existing on the 08 effective date of this chapter as to which the time for delivering or filing a disclaimer 09 under law superseded by this chapter has not expired may be disclaimed after the 10 effective date of this chapter. 11 Sec. 13.70.150. Uniformity of application and construction. In applying and 12 construing this chapter, consideration must be given to the need to promote uniformity 13 of the law with respect to its subject matter among states that enact it. 14 Sec. 13.70.190. Definitions. In this chapter, 15 (1) "disclaimant" means the person to whom a disclaimed interest or 16 power would have passed had the disclaimer not been made; 17 (2) "disclaimed interest" means the interest that would have passed to 18 the disclaimant had the disclaimer not been made; 19 (3) "disclaimer" means the refusal to accept an interest in or power 20 over property and includes a renunciation; 21 (4) "fiduciary" means a personal representative, a trustee, an agent 22 acting under a power of attorney, a guardian, an individual having legal custody of a 23 minor child, or another person authorized to act as a fiduciary with respect to the 24 property of another person; 25 (5) "individual having legal custody of a minor child" means an 26 individual who, under the law of this state, has legal custody of a minor child as a 27 matter of law or court decree; 28 (6) "jointly held property" 29 (A) means property held in the name of two or more persons 30 under an arrangement in which all holders have concurrent interests and under 31 which the last surviving holder is entitled to the whole of the property;
01 (B) does not include property held as a tenancy by the entirety; 02 (7) "person" means an individual, whether the individual is ascertained 03 or unascertained, whether the individual is living or not living, and whatever the basis, 04 including intestacy, for the individual's being entitled to an interest in property; a 05 corporation; a business trust; an estate; a trust; a partnership; a limited liability 06 company; a limited liability partnership; an association; a joint venture; a government; 07 a governmental subdivision, agency, or instrumentality; a public corporation; or any 08 other legal or commercial entity; 09 (8) "trust" 10 (A) means 11 (i) an express trust, charitable or noncharitable, with 12 additions to the express trust, whenever and however created; and 13 (ii) a trust created under a statute, judgment, or decree 14 that requires the trust to be administered in the manner of an express 15 trust; 16 (B) does not include a constructive trust or a resulting trust. 17 Sec. 13.70.195. Short title. This chapter may be cited as the Uniform 18 Disclaimer of Property Interests Act. 19 * Sec. 2. AS 13.12.801 is repealed.