Renunciation And Disclaimer of Property from Will by Testate
Disclaimer of Property Interest-North Dakota
North Dakota Century Code
Chapter 30.1 Uniform Probate Code
CHAPTER 30.1-10 GENERAL PROVISIONS
Disclaimer of property interests.
1. A person, or the representative of a person, to whom
an interest in or with respect to property or an interest therein devolves
by whatever means may disclaim it in whole or in part by delivering or
filing a written disclaimer under this section. The right to disclaim exists
notwithstanding any limitation on the interest of the disclaimant in the
nature of a spendthrift provision or similar restriction or any restriction
or limitation on the right to disclaim contained in the governing instrument.
For purposes of this subsection, the "representative of a person" includes
a personal representative of a decedent, a conservator of a disabled person,
a guardian of a minor or incapacitated person, and an agent acting on behalf
of the person within the authority of a power of attorney.
2. The following rules govern the time when a disclaimer must be
filed or delivered:
a. If the property or interest has devolved to the disclaimant
under a testamentary instrument or by the laws of intestacy, the disclaimer
must be filed, if of a present interest, not later than nine months after
the death of the deceased owner or deceased donee of a power of appointment
and, if of a future interest, not later than nine months after the event
determining that the taker of the property or interest is finally ascertained
and the interest is indefeasibly vested. The disclaimer must be filed in
the court of the county in which proceedings for the administration of
the estate of the deceased owner or deceased donee of the power have been
commenced. A copy of the disclaimer must be delivered in person or mailed
by registered mail to any personal representative or other fiduciary of
the decedent or donee of the power.
b. If a property or interest has devolved to the disclaimant under
a nontestamentary instrument or contract, the disclaimer must be delivered
or filed, if of a present interest, not later than nine months after the
effective date of the nontestamentary instrument or contract and, if of
a future interest, not later than nine months after the event determining
that the taker of the property or interest is finally ascertained and the
interest is indefeasibly vested. If the person entitled to disclaim does
not know of the existence of the interest, the disclaimer must be delivered
or filed not later than nine months after the person learns 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 power to revoke it or to transfer to the maker or another the entire
legal and equitable ownership of the interest. The disclaimer or a copy
thereof must be delivered in person or mailed by registered mail to the
person who has legal title to or possession of the interest disclaimed.
c. A surviving joint tenant may disclaim as a separate interest
any property or interest therein devolving to the survivor 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 survivor, if the joint tenancy was created by act of a
deceased joint tenant, the survivor did not join in creating the joint
tenancy, and has not accepted a benefit under it.
d. If real property or an interest therein is disclaimed, a copy
of the disclaimer may be recorded in the office of the register of deeds
of the county in which the property or interest disclaimed is located.
3. The disclaimer must describe the property or interest disclaimed,
declare the disclaimer and extent thereof, and be signed by the disclaimant.
4. The effects of disclaimer are:
a. If property or an interest therein devolves to a disclaimant
under a testamentary instrument, under a power of appointment exercised
by a testamentary instrument, or under the laws of intestacy, and the decedent
has not provided for another disposition of that interest, should it be
disclaimed, or of disclaimed or failed interests in general, the disclaimed
interest devolves as if the disclaimant had predeceased the decedent, but
if by law or under the testamentary instrument the descendants of the disclaimant
would share in the disclaimed interest by representation or otherwise were
the disclaimant to predecease the decedent, then the disclaimed interest
passes by representation, or passes as directed by the governing instrument,
to the descendants of the disclaimant who survive the decedent. A future
interest that takes effect in possession or enjoyment after the termination
of the estate or interest disclaimed takes effect as if the disclaimant
had predeceased the decedent. A disclaimer relates back for all purposes
to the date of death of the decedent.
b. If property or an interest therein devolves to a disclaimant
under a nontestamentary instrument or contract and the instrument or contract
does not provide for another disposition of that interest, should it be
disclaimed, or of disclaimed or failed interests in general, the disclaimed
interest devolves as if the disclaimant has predeceased the effective date
of the instrument or contract, but if by law or under the nontestamentary
instrument or contract the descendants of the disclaimant would share in
the disclaimed interest by representation or otherwise were the disclaimant
to predecease the effective date of the instrument, then the disclaimed
interest passes by representation, or passes as directed by the governing
instrument, to the descendants of the disclaimant who survive the effective
date of the instrument. A disclaimer relates back for all purposes to that
date. 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 effective date of the instrument or
contract that transferred the disclaimed interest.
c. 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 either of them.
5. The right to disclaim property or an interest therein is barred
by an assignment, conveyance, encumbrance, pledge, or transfer of the property
or interest, or a contract therefor; a written waiver of the right to disclaim;
an acceptance of the property or interest or a benefit under it; or a sale
of the property or interest under judicial sale made before the disclaimer
is made.
6. This section does not abridge the right of a person to waive,
release, disclaim, or renounce property or an interest therein under any
other statute.
7. An interest in property that exists on January 1, 1996, as to
which, if a present interest, the time for filing a disclaimer under this
section has not expired or, if a future interest, the interest has not
become indefeasibly vested or the taker finally ascertained, may be disclaimed
within nine months after January 1, 1996.
Chap. 30, §30.1-10-01. (2-801)
