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  • PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
  • TITLE II DESCENT AND DISTRIBUTION, WILLS, ESTATES OF DECEASED PERSONS AND ABSENTEES, GUARDIANSHIP, CONSERVATORSHIP AND TRUSTS
  • CHAPTER 190B MASSACHUSETTS UNIFORM PROBATE CODE
  • ARTICLE II INTESTACY, WILLS AND DONATIVE TRANSFERS
  • Section 2-801 Disclaimer of property interests

Section 2-801. [Disclaimer of Property Interests.]

(a) The following words as used in this section shall have the following meanings, unless otherwise expressly provided or the context otherwise requires:—

“Beneficiary”, any person to whom, and any estate, trust, corporation or other legal entity to which, an interest in property would pass in any manner described in subsection (b), except for the execution and filing of a disclaimer in accordance with the provisions of this chapter.

An “interest in property” which may be disclaimed shall include:

1. any legal or equitable interest or estate, whether present, future or contingent, in any real or personal property, or in any fractional part, share, or portion thereof, or in any specific asset or assets thereof;

2. any power to appoint, consume, apply, or expend property or any other right, power, or privilege, relating thereto;

3. any fractional part, share or portion of any interest described in clause 1 or 2.

(b) Unless barred by the provisions of subsection (h), a beneficiary may disclaim any interest in property which, except for the execution and filing of a disclaimer in accordance with the provisions of this section, pass to the beneficiary:

1. By intestate succession, devise, legacy, bequest, exercise or nonexercise of a power of appointment exercisable by will, or testamentary exercise or nonexercise of a power of appointment exercisable by either deed of trust or will; as beneficiary of a testamentary trust, beneficiary of a testamentary gift to a nontestamentary trust, or donee of a power of appointment created by will; by succession in any manner described in this clause to a disclaimed interest; or in any other manner not specified above under a testamentary instrument or by operation of any statute or rule of law governing devolution or disposition of property upon or after a person’s death.

2. As donee, grantee, beneficiary of an intervivos trust, beneficiary of an insurance or annuity contract, donee of a power of appointment created by a nontestamentary instrument, or as surviving joint tenant or tenant by the entirety, except that a surviving joint tenant or tenant by the entirety may not disclaim 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; through exercise or nonexercise of a power of appointment exercisable by deed of trust or will; under any deed, assignment, or other non-testamentary instrument of conveyance or transfer; by succession in any manner described in this clause to a disclaimed interest; or in any other manner not specified above under a non-testamentary instrument or by operation of any statute or rule of law.

Disclaimer may be made for a beneficiary under a legal disability by the duly appointed guardian or conservator of such beneficiary, and for a deceased beneficiary by the legal representative of such beneficiary’s estate; provided, in any case, however, that the probate court having jurisdiction of the estate of such beneficiary shall have decreed, upon complaint filed by such guardian, conservator, or legal representative, that such disclaimer is in the best interests of those interested in the estate of such beneficiary and not detrimental to the best interests of the beneficiary or the estate of such beneficiary, and that such guardian, conservator, or legal representative is authorized to execute and file such disclaimer on behalf of such beneficiary in accordance with the provisions of this chapter.

(c) A disclaimer shall be executed and filed pursuant to the provisions of this section at any time after the creation of the interest in property being disclaimed, but in any event not later than nine months after the event determining that the beneficiary is finally ascertained as the beneficiary of such interest and that such interest is indefeasibly vested and in the case of a beneficiary who is a surviving joint tenant or tenant by the entirety, a disclaimer shall be executed and filed in any event not later than nine months after the death of the other joint tenant or tenants or tenant by the entirety; provided, that any court having jurisdiction of the property, an interest in which is being disclaimed, may, upon petition filed by the beneficiary, the duly appointed guardian or conservator of a beneficiary under a legal disability, or the legal representative of a deceased beneficiary’s estate, permit an extension of time to execute and file a disclaimer, for such further period of time as the court in its discretion deems advisable.

(d) A disclaimer shall be in writing, shall describe the interest in property being disclaimed, shall declare the disclaimer and the extent thereof, shall be clear and unequivocal, and shall be signed by the beneficiary, the duly appointed guardian or conservator of a beneficiary under a legal disability, or the legal representative of a deceased beneficiary’s estate.

(e) The original of the disclaimer or an attested copy thereof, if filing is required to be made with more than 1 probate court, shall be filed with the probate court, or probate courts, if any, wherein a duly appointed fiduciary, if any, having custody or control of the property, an interest in which is being disclaimed, is required to file periodic accounts.

If the property, an interest in which is being disclaimed, is real property, the disclaimer shall be acknowledged in the manner provided for deeds of real property. The disclaimer shall not be valid as against any person, except the beneficiary, the heirs and devisees of the beneficiary, and any person, estate, trust, corporation or other legal entity having actual notice of the disclaimer, unless the original thereof or an attested copy thereof if the original is required to be filed with a probate court, is recorded in the registry of deeds for the county or district in which the real property is situated or, in the case of registered real property, is filed and registered in the office of the assistant recorder for the registry district in which the real property is located.

A copy of the disclaimer shall be served by delivering in hand or by mailing by certified mail to the last known address of the person or persons or other legal entity or entities having custody or possession of the property, an interest in which is being disclaimed. Failure to comply with these requirements of service shall not affect the validity of the disclaimer.

(f) No person or other legal entity having custody or possession of the property, an interest in which is being or has been disclaimed, shall be liable for any distribution or other disposition made prior to the delivery to him or it of a copy of the disclaimer, pursuant to the requirements of subsection (e); and no such person or other legal entity shall be liable for any good faith distribution or other disposition made in reliance upon a disclaimer, the form of which is in accordance with the requirements of subsection (d), and a copy of which has been delivered to him or it pursuant to the requirements of subsection (e).

If a disclaimer certifies, with particularity, that none of the contingencies specified in subsection (h), which would result in waiver or bar of the beneficiary’s right to disclaim, are applicable, any person or other legal entity having custody or possession of the property, and any third party purchaser of the property, an interest in which is being or has been disclaimed, shall be entitled to rely without further inquiry upon the aforesaid certifications.

(g) A disclaimer complying with all the applicable requirements of this section shall be effective according to its terms, and shall be irrevocable, upon execution in accordance with the provisions of subsection (d), and filing in accordance with the provisions of subsection (e).

If the interest in property being disclaimed is a power to appoint, consume, apply, or expend property, as described in clause 2 of the second paragraph of subsection (a), or any fractional part, share, or portion thereof, such interest shall be extinguished.

Except as provided in the preceding paragraph, and unless such a result would substantially impair the provisions or intent of any instrument, statute or rule of law relating to the interest in property being disclaimed, such interest shall pass in the same manner as if the beneficiary had died immediately preceding the event determining that he, she or it is the beneficiary of such interest and that such interest is indefeasibly vested.

The interest in property being disclaimed shall never vest in the beneficiary.

Any person or other legal entity having custody or possession of the property, an interest in which is being disclaimed, may file a complaint for instruction or complaint for declaratory judgment seeking a determination of the effect of a disclaimer, in

1. A probate court, if any, having jurisdiction of such property; or

2. If no probate court has jurisdiction of such property, any other court having jurisdiction of such property.

(h) The right to disclaim an interest in property shall be barred by:—

1. assignment, conveyance, encumbrance, pledge, transfer or other disposition of such interest, or any contract therefor, by the beneficiary or sale or other disposition of such interest pursuant to judicial process made before the beneficiary has disclaimed such interest as herein provided;

2. insolvency of the beneficiary at the time of attempted disclaimer. For purposes of this paragraph only, sections 1 to 4, inclusive, and sections 8 to 13, inclusive, of chapter 109A shall be applicable as if the disclaimer were a conveyance;

3. a written waiver of the right to disclaim such interest pursuant to the provisions of this section, signed by the beneficiary, the duly appointed guardian or conservator of a beneficiary under a legal disability, or the legal representative of a deceased beneficiary’s estate;

4. acceptance of such interest by the beneficiary; if the beneficiary, having knowledge of the existence of such interest, receives without objection a benefit from such interest, such receipt shall be deemed to constitute acceptance of such interest.

The assignment, conveyance, encumbrance, pledge, transfer or other disposition or any contract therefor, sale or other disposition pursuant to judicial process, written waiver of the right to disclaim, or acceptance of apart of an interest in property shall not bar the right to disclaim any other part of such interest.

(i) The right to disclaim pursuant to the provisions of this section shall exist irrespective of any limitation in the nature of an express or implied spendthrift provision or other similar restraint on alienation imposed by any instrument, statute, rule of law or otherwise on the interest in property being disclaimed.

[Subsection (j) applicable as provided by 2012, 140, Sec. 66.]

(j) Except for subsection (h), this section shall not abridge the right of any person to disclaim, waive, release, renounce or abandon any interest in property under any other statute or rule of law.