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