Renunciation And Disclaimer of Property from Will by Testate
Disclaimer of Property Interest-New York
New York State Consolidated Laws
Chapter 17-B Estates, Powers & Trusts
ARTICLE 2 RULES GOVERNING DISPOSITIONS SUBJECT TO THIS LAW
PART 1. SUBSTANTIVE RULES GOVERNING DISPOSITIONS
Renunciation of property interests
(a) For purposes of this section:
(1) The term "disposition" shall include a disposition
created under a will or trust agreement including, without limitation,
the granting of a power of appointment, a disposition created by the exercise
or nonexercise of a power of appointment, a distributive share under 4-1.1,
a transfer created by a trust account as defined in 7-5.1, a transfer
created by a life insurance or annuity contract, a transfer created by
a joint tenancy or tenancy by the entirety, a transfer under an employee
benefit plan (including, without limitation, any pension, retirement, death
benefit, stock bonus or profit-sharing plan, system or trust), any other
disposition or transfer created by any testamentary or nontestamentary
instrument, or by operation of law, and any of the foregoing created or
increased by reason of a renunciation made by another person.
A. If the disposition is created by will, the exercise
or nonexercise of a testamentary power of appointment, a distribution
pursuant to 4-1.1, the deposit of money in a trust account as defined in
7-5.1, a life insurance or annuity contract, a joint tenancy or tenancy
by the entirety, or an employee benefit plan, the date of death of the
deceased testator, holder of the power of appointment, intestate, creator
of the trust account, insured, annuitant, other joint tenant or tenant
by the entirety, or employee, as the case may be;
B. If the disposition is created by trust agreement, the exercise
of a presently exercisable power of appointment, or the renunciation of
a disposition created by another, the date of the trust agreement,
exercise of the power of appointment, or renunciation, as the case may
be; and
C. If the disposition is created by any other testamentary or nontestamentary
instrument, or by operation of law, the date of the event by which the
beneficiary is finally ascertained. Notwithstanding the foregoing, the
effective date of a disposition which is of a future estate shall be the
date on which it becomes an estate in possession.
(b)
(1) Any beneficiary of a disposition may renounce all or
part of his interest; provided, however, that a surviving joint tenant
or tenant by the entirety may not renounce that portion of an interest
in joint property or property held by the entirety which is allocable to
amounts contributed by him to the interest in such property.
(2) Such renunciation shall be in writing, signed and acknowledged
by the person renouncing, and shall be filed in the office of the clerk
of the court having jurisdiction over the will or trust agreement governing
the property of which the disposition would otherwise be made or the court
which issued letters of administration, or if there is no probate or administration,
then in a surrogate's court provided by law as the place of probate or
administration of the decedent's estate, within nine months after the effective
date of the disposition. Such renunciation shall be accompanied by an affidavit
of the renouncing party that he has not received and is not to receive
any consideration in money or money's worth for such renunciation from
a person or persons whose interest is to be accelerated, unless payment
of such consideration has been authorized by the court. Notice of such
renunciation, which shall include a copy of the renunciation, shall be
served personally or in such manner as the court may direct upon the fiduciary
directed by the will or trust agreement to make the disposition or upon
the administrator or such other person who was directed to make the disposition
or upon any other person having custody or possession of or legal title
to the property, an interest in which is being renounced, and by mail or
in such manner as the court may direct upon all persons whose interest
may be created or increased by reason of such renunciation. The time to
file and serve such renunciation may be extended, in the discretion
of the court, on a petition showing reasonable cause and on notice to such
persons and in such manner as the court may direct. The time limited in
this section for filing and serving such renunciation is exclusive, and
shall not be suspended or otherwise affected by any other provision of
law; such renunciation shall be effective as of the date of such filing,
notwithstanding that notice thereof may thereafter be required by the court.
(c) A renunciation on behalf of an infant, incompetent, conservatee
or a decedent shall be made by the guardian of the property of such infant,
a committee of such incompetent, a conservator of such conservatee or the
personal representative of such decedent. Such renunciation shall not be
effective unless, prior thereto, the guardian, committee, conservator or
personal representative has been authorized to renounce by the court having
jurisdiction of the estate of the infant, incompetent, conservatee or decedent.
(d) Unless the creator of the disposition has otherwise provided,
the filing of a renunciation, as provided in this section, has the same
effect with respect to the renounced interest as though the renouncing
person had predeceased the creator or the decedent or, if the renounced
interest is a future estate, as though the renouncing person had died at
the time of filing or just prior to its becoming an estate in possession,
whichever is earlier in time, and shall have the effect of accelerating
the possession and enjoyment of subsequent interests, but shall have no
effect upon the vesting of a future estate which by the terms of the disposition
is limited upon a preceding estate other than the renounced interest. If,
pursuant to the preceding sentence, there would occur a per
stirpes disposition of the renounced interest or a disposition or distribution
of the renounced interest by representation, then solely for purposes of
applying 1-2.14 or 1-2.16, as the case may be, the renouncing person shall
be treated as having died on the same date as, but immediately after, the
creator or decedent or, if the renounced interest is a future estate, as
having died on the same date as, but immediately after, its becoming
an estate in possession or, if the time of filing is earlier in time, on
the same date as, but immediately after, such filing. Such renunciation
is retroactive to the creation of the disposition. A person who has
a present and a future interest in property and renounces the present interest
in whole or in part shall be deemed to have renounced the future interest
to the same extent.
(e) A beneficiary may accept one disposition and renounce another,
may renounce a disposition in whole or in part, or with reference to specific
amounts, parts, fractional shares or assets thereof. Notwithstanding the
provisions of paragraph (d) of this section, a renunciation by a surviving
spouse of a decedent of a disposition created by said decedent shall not
be deemed to be a renunciation by such spouse of all or any part of any
other disposition to or in favor of such spouse, regardless of whether
the property which would have passed under said renounced disposition is
by reason of said renunciation disposed of to or in favor of such spouse.
Unless a renouncing person has provided otherwise in his renunciation,
the effect of a renunciation of a fractional part of a disposition is to
renounce such fraction of all property to which the renouncing person is
entitled under the disposition.
(f) A renunciation may not be made under this section with respect
to any property which a renouncing person has accepted, except that an
acceptance does not preclude a person from renouncing all or part of any
property to which he becomes entitled when another person renounces after
such acceptance. For purposes of this paragraph, a person accepts an interest
in property if he voluntarily transfers or encumbers, or contracts to transfer
or encumber all or part of such interest, or accepts delivery or payment
of, or exercises control as beneficial owner over all or part thereof,
or executes a written waiver of the right to renounce, or otherwise indicates
acceptance of all or part of such interest. A written waiver of the right
to renounce shall be binding on the person waiving and all parties claiming
by, through or under him.
(g) A renunciation filed under this section is irrevocable.
(h) This section shall not abridge the right of any beneficiary
or any other person to assign, convey, release or renounce any property
or interest therein arising under any other section of this chapter or
other statute or under common law.
(i) Except as specifically provided in the trust instrument, the
will, any other instrument creating the disposition, or in this section, this section
shall apply to each disposition the effective date of which
(as defined in this section) is on or after the effective date of
this section, except that with respect to the renunciation of a future
interest this section shall apply as well to dispositions created
or increased prior to the effective date of this section.
(j) In determining whether or not a valid disclaimer has been made
for the purposes of the taxes imposed by articles twenty-six and
twenty-six-A of the tax law, the provisions of such law shall be applicable
to such determination, notwithstanding any provisions to the contrary contained
in this section or any other section of this chapter.
Chap. 17B, Art. 2, Part 1, §2-1.11
