Virginia Disclaimer of Property Interest Law

Wills and Estates – Disclaimer of Property Interest – Virginia

Right to disclaim succession to property passing under testamentary instruments or by descent or distribution; disclaimer instrument.

 

An heir, next of kin, devisee, legatee, person succeeding to a disclaimed interest, beneficiary under a testamentary instrument or person designated to take pursuant to the exercise of a power of appointment exercised by a testamentary instrument (or the personal representative of any such deceased person) may disclaim in whole or in part the succession to any property, real or personal, or interest therein by filing a written instrument at the place and within the time hereinafter provided. The disclaimer instrument shall (a) describe the property or part thereof or interest therein disclaimed, (b) declare the disclaimer and the extent thereof and (c) be signed and acknowledged by the disclaimant in the manner provided for the execution of deeds of real estate.

Title 64.1, Chap. 8, §64.1-188.

Time and place of filing disclaimer of property passing under testamentary Instruments.

 

The disclaimer instrument shall be filed within nine months after the death of the decedent or the donee of the power, as the case may be, or if the taker of the property or interest is not then finally ascertained or his interest has not become indefeasibly fixed both in quality and in quantity, then not later than nine months after the event when the taker has become finally ascertained and his interest has become indefeasibly fixed both in quality and quantity. Notwithstanding the foregoing, any disclaimer instrument may be filed not later than the date which is nine months after the taker of the property or interest has reached the age of twenty-one years.

The instrument shall be filed with the court in which the estate in this Commonwealth of the decedent (or the donee of the power) is administered or, if there has been no administration on such estate within nine months of the date of death, then with the court provided by law as the proper place of administration of the estate within this Commonwealth. A copy of the instrument also shall be mailed to the personal representative of the decedent or donee, if any, unless the person making the disclaimer is the sole personal representative of the decedent or the donee. If any interest in real estate located elsewhere in this Commonwealth than in the jurisdiction of the court where the disclaimer instrument is filed is disclaimed, a copy of the disclaimer instrument shall also be recorded in the office of the clerk where deeds to real estate located in such jurisdiction are recorded.

Title 64.1, Chap. 8, §64.1-189.

Effect of disclaimer of property passing under testamentary instruments or by descent or distribution.

 

A. Unless the decedent or donee of the power has otherwise provided by his will, the property or part thereof or interest therein disclaimed and any future interest which is to take effect in possession or enjoyment at or after the termination of the interest disclaimed, shall descend or be distributed as if the disclaimant had predeceased the decedent, or if the disclaimant is one designated to take pursuant to a power of appointment exercised by a testamentary instrument, then as if the disclaimant had predeceased the donee of the power; however, where the interest of the disclaimant is disclaimed only upon the termination of one or more prior estates and does not pass pursuant to the exercise of a power of appointment, the property or part thereof or interest therein disclaimed and any future interest which is to take effect in possession or enjoyment at or after the termination of the interest disclaimed shall descend or be distributed as if the decedent had himself died at the time of the close of the immediately preceding estate, having survived the disclaimant.

B. In every case (except only as provided in subsection A hereof as to the route of descent or distribution of the disclaimed property following a prior estate) the disclaimer shall relate back for all purposes to the date of the death of the decedent or the donee, as the case may be. A person who has a present and a future interest in property and disclaims his present interest in whole or in part, shall be deemed to have disclaimed his future interest to the same extent if such disclaimer of a present interest would cause the future interest to become a present interest.

Title 64.1, Chap. 8, §64.1-190.

Right to disclaim succession to property passing under nontestamentary instruments.

 

A grantee, donee, person succeeding to a disclaimed interest, beneficiary under a nontestamentary instrument or person designated to take pursuant to a power of appointment exercised by a nontestamentary instrument (or the personal representative of any such deceased person) may disclaim in whole or in part the succession to any property, real or personal, or interest therein. A surviving joint tenant or tenant by the entirety may disclaim as a separate interest any property or interest therein devolving to him by right of survivorship. A surviving joint tenant or tenant by the entirety may disclaim the entire interest in any property or interest therein that is the subject of a joint tenancy or tenancy by the entirety devolving to him, if the joint tenancy was created by the act of a deceased joint tenant or tenant by the entirety and if the survivor did not join in creating the joint tenancy or tenancy by the entirety. A disclaimer shall be made by delivering or filing a written instrument within the time and at the place provided in § 64.1-192. The disclaimer instrument shall fulfill the requirements set forth in § 64.1-188 above in the case of an instrument disclaiming an inheritance.

Title 64.1, Chap. 8, §64.1-191.

Time and place of delivery or filing disclaimer to property passing under nontestamentary instruments.

 

The disclaimer instrument shall be delivered or filed within nine months after the effective date of the nontestamentary instrument, or if the taker of the property or interest is not then finally ascertained or his interest has not become indefeasibly fixed both in quality and in quantity, then not later than nine months after the event when the taker has become finally ascertained and his interest has become indefeasibly fixed both in quality and in quantity. Notwithstanding the foregoing, any disclaimer instrument may be filed not later than the date which is nine months after the taker of the property or interest has reached the age of twenty-one years. For purposes of this chapter, no instrument shall be deemed to be effective so long as by its terms the maker has power to revoke it or to transfer or direct to be transferred to himself the entire legal and equitable ownership of the property subject to the instrument.

A copy of the instrument shall be delivered in person or by registered or certified mail to the trustee or other person who has legal title to, or possession of, the property disclaimed. If an interest in real estate is disclaimed, a copy of the instrument shall also be recorded in the court where deeds to real estate located in such jurisdiction are recorded.

Title 64.1, Chap. 8, §64.1-192.

Effect of disclaimer of property passing under nontestamentary instruments.

 

Unless otherwise provided in the nontestamentary instrument, the property or part thereof or interest therein disclaimed and any future interest which is to take effect in possession or enjoyment at or after the termination of the interest disclaimed shall be distributed as if the disclaimant had died before the effective date of the nontestamentary instrument. The disclaimer shall relate back for all purposes to the effective date of the instrument. A person who has a present and a future interest in property and disclaims his present interest in whole or in part, shall be deemed to have disclaimed his future interest to the same extent if such disclaimer of a present interest would cause the future interest to become a present interest.

Title 64.1, Chap. 8, §64.1-193.

Waiver and bar.

 

Any (a) assignment, conveyance, encumbrance, pledge or transfer of property or interest therein or contract therefor, (b) written waiver of right to disclaim or any acceptance of property or interest therein by an heir, next of kin, devisee, legatee, grantee, donee, person succeeding to a disclaimed interest, beneficiary under a nontestamentary instrument or person designated to take pursuant to a power of appointment exercised by a testamentary or nontestamentary instrument or (c) sale or other disposition of property pursuant to judicial process made before the expiration of the period in which the disclaimant may disclaim as herein provided, bars the right to disclaim as to the property or interest.

The right to disclaim granted by this chapter shall exist irrespective of any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.

A disclaimer when delivered and recorded or filed as provided in this chapter, or a written waiver of the right to disclaim, shall be binding upon the disclaimant or person waiving and all parties claiming by, through or under him.

Title 64.1, Chap. 8, §64.1-194.

Exclusiveness of remedy.

 

This chapter shall not abridge the right of any person to assign, convey, release or renounce any property or interest therein arising under any other statute.

Title 64.1, Chap. 8, §64.1-195.

Application of chapter.

 

Any interest in real or personal property which exists on July 1, 1972, but which has not then become indefeasibly fixed in quality and in quantity, or the taker of which has not then become finally ascertained, may be disclaimed after July 1, 1972, in the manner provided herein, but no interest which has arisen prior to July 1, 1972, in any person other than the disclaimant shall be destroyed or diminished by any action of the disclaimant taken pursuant to this chapter.

Title 64.1, Chap. 8, §64.1-196.


Inside Virginia Disclaimer of Property Interest Law