Arkansas Disclaimer of Property Interest Law

Wills and Estates – Disclaimer of Property Interest – Arkansas

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Right to disclaim interest in property.

(a) A person or a representative of a deceased, incapacitated, or incompetent person to whom any property or interest therein devolves, by whatever means, may disclaim it in whole or in part by delivering a written disclaimer under this chapter.

(b) A disclaimer may be of a fractional share or any limited interest or estate.

(c) The right to disclaim granted by this chapter shall exist irrespective of any limitations imposed upon the interest of the disclaimant in the nature of an expressed or implied spendthrift provision or similar restriction.

(d) This chapter does not abridge the right of any person to waive, release, disclaim, or renounce property or an interest therein under any other statute.

Title 28, Subtitle 1, Chap. 2, §28-2-101.

Waiver and bar.

The right to disclaim property or an interest therein is barred by:

(1) An assignment, conveyance, encumbrance, pledge, or transfer of the property or interest, or a contract therefor;

(2) A written waiver of the right to disclaim;

(3) An acceptance of the property or interest or a benefit thereunder;

(4) A sale of the property or interest under judicial sale made before the disclaimer is effected.

Title 28, Subtitle 1, Chap. 2, §28-2-102.

Minor, incompetent, or deceased beneficiary.

A guardian of the property or an executor or administrator of the estate of a minor, incompetent, or deceased beneficiary may, if the fiduciary deems it to be in the best interest of those concerned with the estate of the beneficiary and of those who will take the beneficiary’s interest by virtue of the disclaimer and is not detrimental to the best interest of the beneficiary, with or without an order of the court having jurisdiction, shall execute and file a disclaimer on behalf of the beneficiary within the time and in the manner in which the beneficiary himself could disclaim if he were living, of legal age, or competent.

Title 28, Subtitle 1, Chap. 2, §28-2-103.

Joint interests.

(a) A surviving joint tenant or tenant by the entireties may disclaim as a separate interest any property or interest therein devolving to him by right of survivorship.

(b) A surviving joint tenant or tenant by the entireties may disclaim the entire interest in any property or interest therein that is the subject of a joint tenancy or tenancy by the entireties devolving to him, if the joint tenancy or tenancy by the entireties was created by act of a deceased joint tenant or tenant by the entireties and the survivor did not join in creating the joint tenancy or the tenancy by the entireties.

However, if the survivor did join in creating the joint tenancy or the tenancy by the entireties, then the survivor may disclaim only the incremental interest acquired by the survivor by virtue of the death of the deceased joint tenant or tenant by the entireties.

Title 28, Subtitle 1, Chap. 2, §28-2-104.

Agents or attorneys.

A disclaimant may, if he desires, execute and file a disclaimer by agent or attorney lawfully empowered.

Title 28, Subtitle 1, Chap. 2, §28-2-105.

Form of disclaimer.

The disclaimer shall describe the property or interest disclaimed, declare the disclaimer and extent thereof, and be signed by the disclaimant.

Title 28, Subtitle 1, Chap. 2, §28-2-106.

Time of disclaimer – Delivery.

(a)

(1) Except as provided in subsection (c), if the property or interest has devolved to the disclaimant under a testamentary instrument or by the laws of intestacy, the disclaimer shall be delivered, as to a present interest, not later than nine (9) months after the death of the deceased owner or deceased donee of a power of appointment and, as to a future interest, not later than nine (9) months after the event determining that the taker of the property or interest has become finally ascertained and his interest is indefeasibly vested.
(2) The disclaimer shall be delivered in person or mailed by registered or certified mail to any personal representative or other fiduciary of the decedent or the donee of the power, to the holder of the legal title to which the interest relates, or to the person entitled to the property or interest in the event of disclaimer.
(3) A copy of the disclaimer shall be filed in the probate court of the county in which proceedings for the administration of the estate of the deceased owner or deceased donee of the power have been commenced.

(b)

(1)

(A) Except as provided in subsection (c), if the property or interest has devolved to the disclaimant under a nontestamentary instrument or contract, the disclaimer shall be delivered, as to a present interest, not later than nine (9) months after the effective date of the nontestamentary instrument or contract and, as to a future interest, not later than nine (9) months after the event determining that the taker of the property or interest has become finally ascertained and his interest indefeasibly vested.
(B) If the person entitled to disclaim does not have actual knowledge of the existence of the interest, the disclaimer shall be delivered not later than nine (9) months after he has actual knowledge of the existence of the interest.

(2) The disclaimer shall be delivered in person or mailed by registered or certified mail to the person who has legal title to or possession of the interest disclaimed.

(c) In any case, as to a transfer creating an interest in the disclaimant made after December 31, 1976, and subject to tax under chapters 11, 12, or 13 of the Internal Revenue Code of 1954, as amended, a disclaimer intended as a qualified disclaimer must specifically so state and must be delivered not later than nine (9) months after the later of either the date the transfer is made or the day on which the person disclaiming attains age twenty-one (21) years.

Title 28, Subtitle 1, Chap. 2, §28-2-107.

Effect of disclaimer generally.

(a)

(1) If the property or interest devolved to a disclaimant under a testamentary instrument or under the laws of intestacy and the deceased owner or donee of a power of appointment has not provided for another disposition, it devolves as if the disclaimant had predeceased the decedent or, if the disclaimant was designated to take under a power of appointment exercised by a testamentary instrument, as if the disclaimant had predeceased the donee of the power.
(2) Any future interest that takes effect in possession or enjoyment after the termination of the estate or interest disclaimed takes effect as if the disclaimant had died before the event determining that the taker of the property or interest had become finally ascertained and his interest is indefeasibly vested.
(3) A disclaimer relates back for all purposes to the date of death of the decedent or of the donee of the power or the determinative event as the case may be.

(b)

(1) If the property or interest devolved to a disclaimant under a nontestamentary instrument or contract and the instrument or contract does not provide for another disposition:

(A) It devolves as if the disclaimant had died before the effective date of the instrument or contract; and
(B) A future interest that takes effect in possession or enjoyment at or after the termination of the disclaimed interest takes effect as if the disclaimant had died before the event determining that the taker of the property or interest had become finally ascertained and his interest indefeasibly vested.

(2) A disclaimer relates back for all purposes to the effective date of the instrument or contract or the date of the determinative event, as the case may be. The effective date of a revocable instrument or contract is the date on which the maker no longer has power to revoke it or to transfer to himself or another the entire legal equitable ownership of the interest.

(c) The disclaimer or the written waiver of the right to disclaim is binding upon the disclaimant or persons waiving and all persons claiming through or under him.

Title 28, Subtitle 1, Chap. 2, §28-2-108.

Disclaimer of interest in real property.

(a) If real property or an interest therein is disclaimed, a copy of the disclaimer shall be recorded in the office of the circuit clerk of the county in which the property or interest disclaimed is located.

(b) If an interest in or relating to real property is disclaimed and duly recorded as provided in this section, the spouse of the person entering the disclaimer, if the spouse has consented to the disclaimer in writing, shall be automatically debarred from any dower or curtesy interest in the real estate to which the spouse would have been lawfully entitled except for the disclaimer.

Title 28, Subtitle 1, Chap. 2, §28-2-109.


Inside Arkansas Disclaimer of Property Interest Law