Florida Statutes 739.201 – Disclaimer of interest in property
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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.
Terms Used In Florida Statutes 739.201
- Benefactor: means the creator of the interest that is subject to a disclaimer. See Florida Statutes 739.102
- Disclaimant: means the person to whom a disclaimed interest or power would have passed had the disclaimer not been made. See Florida Statutes 739.102
- Disclaimed interest: means the interest that would have passed to the disclaimant had the disclaimer not been made. See Florida Statutes 739.102
- Disclaimer: means the refusal to accept an interest in or power over property. See Florida Statutes 739.102
- Future interest: means an interest that takes effect in possession or enjoyment, if at all, later than the time of its creation. See Florida Statutes 739.102
- Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
- Intestate: Dying without leaving a will.
- 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. See Florida Statutes 739.102
- Time of distribution: means the time when a disclaimed interest would have taken effect in possession or enjoyment. See Florida Statutes 739.102
- Trust: means :(a) An express trust (including an honorary trust or a trust under…. See Florida Statutes 739.102(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.
(4) In the case of a disclaimer of property over which the disclaimant has a power, in a fiduciary or nonfiduciary capacity, to direct the beneficial enjoyment of the disclaimed property, unless the disclaimer specifically provides to the contrary with reference to this subsection, the disclaimant shall also be deemed to have disclaimed that power unless the power is limited by an ascertainable standard, as defined in s. 736.0103, as in effect when the disclaimer becomes irrevocable.