Kansas Disclaimer

Disclaimer of interest in property; persons authorized; disclaimer instrument, contents, validity.

(a) A person or the personal representative of a person may disclaim in whole, in part or in an undivided part any real or personal property, or any interest therein or power thereover, passing upon death of another to such person as: (1) Heir; (2) next of kin; (3) devisee; (4) legatee; (5) a person succeeding to a disclaimed interest; (6) beneficiary under a testamentary instrument; (7) beneficiary under an insurance policy; (8) joint owner with a right of survivorship in real or personal property, to the extent the survivor may take more than the survivor's equitable portion of the property; (9) a person named to take on the death of the other person; (10) donee of a power of appointment; (11) beneficiary under the terms of an inter vivos trust; or (12) a person designated to take pursuant to a power of appointment exercised by or under a testamentary instrument.

(b) Disclaimer pursuant to this act shall be made by filing a written instrument and giving notice thereof in the manner hereinafter provided. The instrument shall:

(1) Describe the property, interest or power subject to the disclaimer, (2) contain a declaration of disclaimer and the extent thereof and (3) be signed and acknowledged by the disclaimant. (c) Notwithstanding the provisions of subsections (a) and (b), a disclaimer shall only be valid to the extent that it does not conflict with K.S.A. 39-709 and amendments thereto. Chap. 59, Art. 22, §59-2291.

Same; filing and recordation of disclaimer instrument. (a) The disclaimer instrument shall be filed within nine months after the latest of:

(1) The death of the decedent or the donee of the power, as the case may be;

(2) if the taker of the power, property or interest is not then finally ascertained or if the taker's interest has not become indefeasibly fixed both in quality and in quantity, the date that the taker becomes finally ascertained and such taker's interest becomes indefeasibly fixed both in quality and in quantity; or

(3) the date when the taker of the property, interest or power attains the age of 21 years.

(b) The disclaimer instrument shall be filed and recorded in the district court in which the estate of the decedent or the donee of the power is or may be administered. Upon filing the disclaimer instrument, the disclaimant shall give notice of the disclaimer by personal delivery or sending, by certified mail, a copy of the instrument to the transferor, or the personal representative of the transferor, of the property, interest or power or to the holder of the legal title to the property to which the interest or power relates. Chap. 59, Art. 22, §59-2292.

Same; effect of disclaimer; disclaimer barred, when; limit on disclaimant's interest of no effect; interests subject to disclaimer; disclaimer applicable to income from property disclaimed.

(a) Unless the decedent or donee of the power has otherwise provided, the property, interest or power disclaimed as provided in K.S.A. 59-2291 and amendments thereto shall descend or be distributed as if the disclaimant had predeceased the decedent or, if the disclaimant is designated to take pursuant to a power of appointment exercised by or under a testamentary instrument, as if the disclaimant had predeceased the donee of the power. In every case, the disclaimer shall relate back for all purposes to the date of death of the decedent or the donee, as the case may be, except that, in the case of a beneficiary under the terms of an inter vivos trust, the disclaimer shall relate back to the date of the transfer.

(b) Any conveyance of or contract to convey real property or any interest therein, any assignment or transfer of or contract to assign or transfer personal property, any written waiver of the right to disclaim the taking of or power over real or personal property or any sale or other disposition of real or personal property pursuant to judicial process by a person attempting to disclaim the taking of or power over property bars the right of such person to disclaim as to the power, property or interest.

(c) The right to disclaim shall exist irrespective of any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.

(d) A disclaimer when filed and recorded or a written waiver of the right to disclaim shall be final, and the disclaimer or waiver cannot be revoked and shall be binding upon the disclaimant or person waiving, the personal representative of the disclaimant or person waiving and all parties claiming the right to disclaim or waive by, through or under the disclaimant or person waiving, except that, in the case of disclaimer, the interest in or power over the property shall pass as provided in subsection (a) unless otherwise provided by the instrument creating the interest or power or unless the interest or power is further disclaimed by the person succeeding to the disclaimed interest or power.

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

(f) Any interest, rents, profits or other income which arises from an interest in property disclaimed pursuant to this act and which accrues between the date of the death of the decedent or donee and the date of the disclaimer shall be the property of the person entitled to receive the disclaimed interest in the property and the person shall have a right of action against the disclaimant to recover that income. Chap. 59, Art. 22, §59-2293.

Act supplemental to probate code.
The provisions of this act shall be part of and supplemental to the Kansas probate code.

Chap. 59, Art. 22, §59-2294.