Delaware Disclaimer of Property Law

Wills and Estates – Disclaimer of Property Interest – Delaware

Right to disclaim interest in property.

A person, or the representative of a deceased, incapacitated or protected person, who is a grantee, donee, heir, next of kin, devisee, legatee, person succeeding to a disclaimed or relinquished interest, surviving joint tenant, beneficiary under a testamentary or nontestamentary instrument or contract, donee of a power of appointment or appointee under an exercised power of appointment, to whom property or an interest in or with respect to property devolves by whatever means may disclaim it, in whole or in part, by delivering a written disclaimer in the manner provided in this chapter. The right to disclaim exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction. A disclaimer may be of a fractional share, or any limited interest or estate, or of any lesser included interest or estate, including a lesser included interest or estate having a specific monetary value.

Title 12, Part III, Chap. 6, §601.

Time for receipt.

(a) Except as provided in subsection (c), (d) or (e) of this section, if the property or interest has devolved to the disclaimant under a testamentary instrument, by the laws of intestacy or as a result of the death of a joint tenant, the disclaimer must be received, if of a present interest, not later than 9 months after the death of the deceased transferor, the deceased donee of a power of appointment or the deceased joint tenant, as the case may be, and, if of a future interest, not later than 9 months after the event determining that the taker of the property or interest has become finally ascertained and the interest indefeasibly vested. The disclaimer, to be effective, must be received within the above time limits by the legal representative of the transferor of the property or interest or the holder of the legal title to which the interest relates. A copy of the disclaimer may be delivered to the person or persons entitled to the property or interest in the event of disclaimer, but the failure to make such delivery shall not affect the validity of the disclaimer. A copy of the disclaimer may be filed with the Register of Wills for the county in which proceedings for the administration of the estate of a deceased transferor of the property or interest, a deceased donee of the power or a deceased joint tenant have been commenced, but the failure to so file the disclaimer shall not affect its validity.

(b) Except as provided in subsection (c), (d) or (e) of this section, if the property or interest has devolved to the disclaimant under a nontestamentary instrument or contract (other than as the result of the death of a joint tenant), the disclaimer must be received, if of a present interest, not later than 9 months after the effective date of the nontestamentary instrument or contract, and, if of a future interest, not later than 9 months after the event determining that the taker of the property or interest has become finally ascertained and the interest indefeasibly vested. If the person entitled to disclaim does not have actual knowledge of the existence of the interest, the disclaimer must be received not later than 9 months after the disclaimant acquires actual knowledge of the existence of the interest. The effective date of a revocable instrument or contract is the date on which the maker no longer has the power to revoke it or to transfer to oneself or another the entire legal and equitable ownership of the interest. The disclaimer, to be effective, must be received within the above time limits by the transferor of the property or interest, the transferor legal representative or the holder of the legal title to which the interest relates. A copy of the disclaimer may be delivered to the person or persons entitled to the property or interest in the event of disclaimer, but the failure to make such delivery shall not affect the validity of the disclaimer.

(c) If the person desiring to disclaim is under age 21 at the commencement of the applicable 9-month limit under subsection (a) or (b) of this section, the disclaimer, to be effective, must be received not later than the date that is 9 months after the day on which the disclaimant attains age 21.

(d) If the person desiring to disclaim is, by reason of mental illness or mental infirmity, unable properly to manage and care for the property at the commencement of the applicable 9-month limit under subsection (a), (b) or (c) of this section, the disclaimer, to be effective, must be received not later than the date that is 9 months after the earlier of:

(1) The date of the Court’s order appointing a trustee for such mentally ill person or appointing a guardian of the property of such mentally infirm person; or
(2) The date of termination of such person’s mental illness or mental infirmity.

(e) The Court of Chancery, upon petition of the person desiring to disclaim, or the person’s representative, filed within the applicable time limit under subsection (a), (b), (c) or (d) of this section, may extend the time limit for making a disclaimer under this chapter.

(f) A joint tenant who did not join in the creation of the joint tenancy may disclaim during the joint tenant’s life all or any part of the joint tenant’s interest in the property which is the subject of the joint tenancy by delivering a disclaimer to the other joint tenant or joint tenants. A surviving joint tenant may disclaim as a separate interest any property or interest therein devolving to the surviving joint tenant by right of survivorship. A surviving joint tenant may disclaim the entire interest in any property or interest therein that is the subject of a joint tenancy devolving to the surviving joint tenant, if the joint tenancy was created by the act of a deceased joint tenant and the survivor did not join in creating the joint tenancy. For purposes of this chapter, the term “joint tenant” includes a tenant by the entireties, and the term “joint tenancy” includes a tenancy by the entireties.

(g) For purposes of this chapter, the donee of a power of appointment with respect to property shall be treated as having an interest in such property and the donor of a power of appointment shall be considered a transferor of an interest in the property subject to the power. A disclaimer by the donee of a power of appointment may be with respect to the whole or any part of the property subject to such power, and the disclaimer may be in such manner as to reduce or limit the person or objects, or classes of persons or objects, in whose favor such power would otherwise be exercisable.

(h) If real property or an interest therein is disclaimed, a copy of the disclaimer may be recorded in the Office of the Recorder of Deeds in and for the county in which the property or interest disclaimed is located. Title 12, Part III, Chap. 6, §602.

Form.

The disclaimer shall be in writing and shall:

(1) Be an irrevocable and unqualified refusal by the disclaimant to accept property or an interest therein;

(2) Describe the property or interest disclaimed;

(3) Declare the disclaimer and extent thereof; and

(4) Be signed by the disclaimant. Title 12, Part III, Chap. 6, §603. (63 Del. Laws, c. 448, § 1.)

Effect.

(a) Except as otherwise provided in subsection (c) of this section, if the property or interest devolved to a disclaimant under a testamentary instrument, under the laws of intestacy or as a result of the death of a joint tenant, and if the deceased transferor or deceased joint tenant has not provided for another disposition, a present interest devolves as if the disclaimant had predeceased the decedent, and any future interest that takes effect in possession or enjoyment at or 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 the interest indefeasibly vested. If a disclaimer relates only to a particular property or interest, the disclaimant shall not be considered to have predeceased with respect to any other property or interest not effectively disclaimed. A disclaimer relates back, for all purposes, to the date of death of the transferor or joint tenant, or to the date of the determinative event, as the case may be.

(b) Except as otherwise provided in subsection (c) of this section, if the property or interest devolved to a disclaimant under a nontestamentary instrument or contract (other than as the result of the death of a joint tenant) and the instrument or contract does not provide for another disposition: (1) A present interest devolves as if the disclaimant had died before the effective date of the instrument or contract; and (2) 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 the interest indefeasibly vested. If a disclaimer relates only to a particular property or interest, the disclaimant shall not be considered to have predeceased with respect to any other property or interest not effectively disclaimed. A disclaimer relates back, for all purposes, to the effective date of the instrument or contract or to the date of the determinative event, as the case may be.

(c) Notwithstanding subsections (a) and (b) of this section, if the disclaimant was designated to take under an exercised power of appointment, the property or interest disclaimed devolves as if the disclaimant had died before the effective date of the exercise.

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

Title 12, Part III, Chap. 6, §604.

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 any of its benefits; or

(4) A sale of the property or interest under judicial sale made before the disclaimer is effected. Title 12, Part III, Chap. 6, §605.
Chapter not exclusive.

This chapter does not abridge the right of a person to waive, release, disclaim or renounce property or an interest therein under any other law. Title 12, Part III, Chap. 6, §606.

Application of chapter.

(a) A present interest in property that exists on the effective date of this chapter and as to which the time for making a disclaimer under this chapter has not expired may be disclaimed within 9 months after the effective date of this chapter.

(b) A future interest that exists on the effective date of this chapter which has not become indefeasibly vested or with respect to which the taker has not been finally ascertained may be disclaimed within the applicable time limit provided in § 602 of this title. Title 12, Part III, Chap. 6, §607.

Short title.

This chapter may be cited as the “Delaware Disclaimer of Property Interests Act.” Title 12, Part III, Chap. 6, §608.


Inside Delaware Disclaimer of Property Law