H.B. No. 2428
AN ACT
relating to the adoption of the Texas Uniform Disclaimer of
Property Interests Act.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 24.002(12), Business & Commerce Code, is
amended to read as follows:
(12) "Transfer" means every mode, direct or indirect,
absolute or conditional, voluntary or involuntary, of disposing of
or parting with an asset or an interest in an asset, and includes
payment of money, release, lease, and creation of a lien or other
encumbrance. The term does not include a transfer under a
disclaimer filed under Chapter 240, [Section 37A, Texas Probate
Code, or Section 112.010,] Property Code.
SECTION 2. The heading to Subchapter A, Chapter 122,
Estates Code, is amended to read as follows:
SUBCHAPTER A. [GENERAL PROVISIONS RELATING TO] DISCLAIMER OF
INTEREST OR POWER
SECTION 3. Sections 122.001 and 122.002, Estates Code, are
amended to read as follows:
Sec. 122.001. DEFINITIONS. In this subchapter [chapter,
other than Subchapter E]:
(1) "Beneficiary" includes a person who would have
been entitled, if the person had not made a disclaimer, to receive
property as a result of the death of another person:
(A) by inheritance;
(B) under a will;
(C) by an agreement between spouses for community
property with a right of survivorship;
(D) by a joint tenancy with a right of
survivorship;
(E) by a survivorship agreement, account, or
interest in which the interest of the decedent passes to a surviving
beneficiary;
(F) by an insurance, annuity, endowment,
employment, deferred compensation, or other contract or
arrangement; or
(G) under a pension, profit sharing, thrift,
stock bonus, life insurance, survivor income, incentive, or other
plan or program providing retirement, welfare, or fringe benefits
with respect to an employee or a self-employed individual.
(2) "Disclaim" and "disclaimer" have the meanings
assigned by Section 240.002, Property Code ["Disclaimer" includes
renunciation].
[(3) "Property" includes all legal and equitable
interests, powers, and property, present or future, vested or
contingent, and beneficial or burdensome, in whole or in part.]
Sec. 122.002. DISCLAIMER [WHO MAY DISCLAIM]. [(a)] A
person who may be entitled to receive property as a beneficiary may
disclaim the person's interest in or power over the property in
accordance with Chapter 240, Property Code [who on or after
September 1, 1977, intends to irrevocably disclaim all or any part
of the property shall evidence the disclaimer as provided by this
chapter].
[(b) Subject to Subsection (c), the legally authorized
representative of a person who may be entitled to receive property
as a beneficiary who on or after September 1, 1977, intends to
irrevocably disclaim all or any part of the property on the
beneficiary's behalf shall evidence the disclaimer as provided by
this chapter.
[(c) A disclaimer made by a legally authorized
representative described by Subsection (d)(1), (2), or (3), other
than an independent executor, must be made with prior court
approval of the court that has or would have jurisdiction over the
legally authorized representative. A disclaimer made by an
independent executor on behalf of a decedent may be made without
prior court approval.
[(d) In this section, "legally authorized representative"
means:
[(1) a guardian if the person entitled to receive the
property as a beneficiary is an incapacitated person;
[(2) a guardian ad litem if the person entitled to
receive the property as a beneficiary is an unborn or unascertained
person;
[(3) a personal representative, including an
independent executor, if the person entitled to receive the
property as a beneficiary is a decedent; or
[(4) an attorney in fact or agent appointed under a
durable power of attorney authorizing disclaimers if the person
entitled to receive the property as a beneficiary executed the
power of attorney as a principal.]
SECTION 4. Section 122.201, Estates Code, is amended to
read as follows:
Sec. 122.201. ASSIGNMENT. A person who is entitled to
receive property or an interest in property from a decedent under a
will, by inheritance, or as a beneficiary under a life insurance
contract, and does not disclaim the property under Chapter 240,
Property Code, [this chapter] may assign the property or interest
in property to any person.
SECTION 5. Section 122.202, Estates Code, is amended to
read as follows:
Sec. 122.202. FILING OF ASSIGNMENT. An assignment may, at
the request of the assignor, be delivered or filed as provided for
the delivery or filing of a disclaimer under Subchapter C, Chapter
240, Property Code [B].
SECTION 6. Section 122.204, Estates Code, is amended to
read as follows:
Sec. 122.204. FAILURE TO COMPLY. Failure to comply with
Chapter 240, Property Code, [Subchapters A, B, C, and D] does not
affect an assignment.
SECTION 7. Section 122.205, Estates Code, is amended to
read as follows:
Sec. 122.205. GIFT. An assignment under this subchapter is
a gift to the assignee and is not a disclaimer under Chapter 240,
Property Code [Subchapters A, B, C, and D].
SECTION 8. Section 124.004, Estates Code, is amended to
read as follows:
Sec. 124.004. EFFECT OF DISCLAIMERS. This subchapter shall
be applied after giving effect to any disclaimers made in
accordance with Chapter 240, Property Code [Subchapters A, B, C,
and D, Chapter 122].
SECTION 9. Section 814.005(a), Government Code, is amended
to read as follows:
(a) A person may, on a form prescribed by and filed with the
retirement system, waive all or a portion of any benefits from the
retirement system to which the person is entitled. The retirement
system also shall give effect as a waiver to a full or partial
disclaimer executed in accordance with Chapter 240, Property
[Section 37A, Texas Probate] Code, unless the benefit to be
disclaimed is a lifetime annuity. A person may revoke a waiver of
benefits in the same manner as the original waiver was made, unless
the original waiver by its terms was made irrevocable.
SECTION 10. Section 834.005, Government Code, is amended to
read as follows:
Sec. 834.005. DISCLAIMER OF BENEFITS. The retirement
system shall give effect to a full or partial disclaimer of benefits
executed in accordance with Chapter 240, Property [Section 37A,
Texas Probate] Code, unless the benefit to be disclaimed is a
lifetime annuity.
SECTION 11. Section 839.004, Government Code, is amended to
read as follows:
Sec. 839.004. DISCLAIMER OF BENEFITS. The retirement
system shall give effect to a full or partial disclaimer of benefits
executed in accordance with Chapter 240, Property [Section 37A,
Texas Probate] Code, unless the benefit to be disclaimed is a
lifetime annuity.
SECTION 12. Section 1551.259(e), Insurance Code, is amended
to read as follows:
(e) The board of trustees shall give effect to a full or
partial disclaimer of benefits executed in accordance with Chapter
240, Property [Section 37A, Texas Probate] Code.
SECTION 13. The heading to Section 112.010, Property Code,
is amended to read as follows:
Sec. 112.010. PRESUMED ACCEPTANCE [OR DISCLAIMER] BY [OR ON
BEHALF OF] BENEFICIARY; DISCLAIMER.
SECTION 14. Section 112.010(b), Property Code, is amended
to read as follows:
(b) A disclaimer of an interest in or power over trust
property is governed by Chapter 240 [If a trust is created by will,
a beneficiary may disclaim an interest in the manner and with the
effect for which provision is made in the applicable probate law].
SECTION 15. The Property Code is amended by adding Title 13
to read as follows:
TITLE 13. DISCLAIMER OF PROPERTY INTERESTS
CHAPTER 240. TEXAS UNIFORM DISCLAIMER OF PROPERTY INTERESTS ACT
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 240.001. SHORT TITLE. This chapter may be cited as the
Texas Uniform Disclaimer of Property Interests Act.
Sec. 240.002. DEFINITIONS. In this chapter:
(1) "Current beneficiary" and "presumptive remainder
beneficiary" have the meanings assigned by Section 112.071.
(2) "Disclaim" means to refuse to accept an interest
in or power over property, including an interest or power the person
is entitled to:
(A) by inheritance;
(B) under a will;
(C) by an agreement between spouses for community
property with a right of survivorship;
(D) by a joint tenancy with a right of
survivorship;
(E) by a survivorship agreement, account, or
interest in which the interest of the decedent passes to a surviving
beneficiary;
(F) by an insurance, annuity, endowment,
employment, deferred compensation, or other contract or
arrangement;
(G) under a pension, profit sharing, thrift,
stock bonus, life insurance, survivor income, incentive, or other
plan or program providing retirement, welfare, or fringe benefits
with respect to an employee or a self-employed individual; or
(H) by an instrument creating a trust.
(3) "Disclaimant" means:
(A) the person to whom a disclaimed interest or
power would have passed had the disclaimer not been made;
(B) the estate to which a disclaimed interest or
power would have passed had the disclaimer not been made by the
personal representative of the estate; or
(C) the trust into which a disclaimed interest or
power would have passed had the disclaimer not been made by the
trustee of the trust.
(4) "Disclaimed interest" means the interest that
would have passed to the disclaimant had the disclaimer not been
made.
(5) "Disclaimed power" means the power that would have
been possessed by the disclaimant had the disclaimer not been made.
(6) "Disclaimer" means the refusal to accept an
interest in or power over property.
(7) "Estate" has the meaning assigned by Section
22.012, Estates Code.
(8) "Fiduciary" means a personal representative, a
trustee, an attorney in fact or agent acting under a power of
attorney, or any other person authorized to act as a fiduciary with
respect to the property of another person.
(9) "Guardian" has the meaning assigned by Section
1002.012, Estates Code.
(10) Notwithstanding Section 311.005, Government
Code, "person" means an individual, corporation, including a public
corporation, business trust, partnership, limited liability
company, association, joint venture, governmental entity,
including a political subdivision, agency, or instrumentality, or
any other legal entity.
(11) "Personal representative" has the meanings
assigned by Sections 22.031 and 1002.028, Estates Code.
(12) "State" means a state of the United States, the
District of Columbia, Puerto Rico, the United States Virgin
Islands, or any territory or insular possession subject to the
jurisdiction of the United States. The term includes an Indian
tribe or band, or Alaskan native village, recognized by federal law
or formally acknowledged by a state.
(13) "Survivorship property" means property held in
the name of two or more persons under an arrangement in which, on
the death of one of the persons, the property passes to and is
vested in the other person or persons. The term includes:
(A) property held by an agreement described in
Section 111.001, Estates Code;
(B) property held by a community property
survivorship agreement defined in Section 112.001, Estates Code;
and
(C) property in a joint account held by an
agreement described in Section 113.151, Estates Code.
(14) "Trust" has the meaning assigned by Section
111.003.
(15) "Ward" has the meaning assigned by Section
22.033, Estates Code.
Sec. 240.003. APPLICABILITY OF CHAPTER. This chapter
applies to disclaimers of any interest in or power over property,
whenever created.
Sec. 240.004. CHAPTER SUPPLEMENTED BY OTHER LAW. (a)
Unless displaced by a provision of this chapter, the principles of
law and equity supplement this chapter.
(b) This chapter does not limit any right of a person to
waive, release, disclaim, or renounce an interest in or power over
property under a statute other than this chapter.
Sec. 240.005. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
In applying and construing this chapter, consideration must be
given to the need to promote uniformity of the law, with respect to
the subject matter of this chapter, among states that enact a law
based on the uniform act on which this chapter is based.
Sec. 240.006. POWER TO DISCLAIM BY PERSON OTHER THAN
FIDUCIARY. (a) A person other than a fiduciary may disclaim, in
whole or in part, any interest in or power over property, including
a power of appointment.
(b) A person other than a fiduciary may disclaim an interest
or power under this section even if the creator of the interest or
power imposed a spendthrift provision or similar restriction on
transfer or a restriction or limitation on the right to disclaim.
Sec. 240.007. POWER TO DISCLAIM POWER HELD IN FIDUCIARY
CAPACITY BY PERSON DESIGNATED TO SERVE AS OR SERVING AS FIDUCIARY.
(a) Subject to Subsection (b) and except to the extent the person's
right to disclaim is expressly restricted or limited by a law of
this state or by the instrument creating the fiduciary
relationship, a person designated to serve or serving as a
fiduciary may disclaim, in whole or in part, any power over
property, including a power of appointment and the power to
disclaim, held in a fiduciary capacity.
(b) If a power being disclaimed under Subsection (a) by a
person designated to serve or serving as a trustee affects the
distributive rights of any beneficiary of the trust:
(1) the person may disclaim only on or after accepting
the trust;
(2) the disclaimer must be compatible with the
trustee's fiduciary obligations; and
(3) if the disclaimer is made on accepting the trust,
the trustee is considered to have never possessed the power
disclaimed.
(c) A person designated to serve or serving as a fiduciary
may disclaim a power under this section even if the creator of the
power imposed a spendthrift provision or similar restriction on
transfer.
Sec. 240.008. POWER TO DISCLAIM BY FIDUCIARY ACTING IN
FIDUCIARY CAPACITY. (a) Subject to this section and except to the
extent the fiduciary's right to disclaim is expressly restricted or
limited by a law of this state or by the instrument creating the
fiduciary relationship, a fiduciary acting in a fiduciary capacity
may disclaim, in whole or in part, any interest in or power over
property, including a power of appointment and the power to
disclaim, that would have passed to the ward, estate, trust, or
principal with respect to which the fiduciary was acting had the
disclaimer not been made even if:
(1) the creator of the interest or power imposed a
spendthrift provision or similar restriction on transfer or a
restriction or limitation on the right to disclaim; or
(2) an instrument other than the instrument that
created the fiduciary relationship imposed a restriction or
limitation on the right to disclaim.
(b) Except as provided by Subsection (c), (d), or (f), a
disclaimer by a fiduciary acting in a fiduciary capacity does not
require court approval to be effective unless the instrument that
created the fiduciary relationship requires court approval.
(c) The following disclaimers by a fiduciary acting in a
fiduciary capacity are not effective unless approved by a court of
competent jurisdiction:
(1) a disclaimer by a personal representative who is
not an independent administrator or independent executor;
(2) a disclaimer by the trustee of a management trust
created under Chapter 1301, Estates Code;
(3) a disclaimer by the trustee of a trust created
under Section 142.005; or
(4) a disclaimer that would result in an interest in or
power over property passing to the person making the disclaimer.
(d) A trustee acting in a fiduciary capacity may not
disclaim an interest in property that would cause the interest in
property not to become trust property unless:
(1) a court of competent jurisdiction approves the
disclaimer; or
(2) the trustee provides written notice of the
disclaimer in accordance with Section 240.0081.
(e) In the absence of a court-appointed guardian, without
court approval, a natural guardian as described by Section
1104.051, Estates Code, may disclaim on behalf of a minor child of
the natural guardian, in whole or in part, any interest in or power
over property, including a power of appointment, that the minor
child is to receive solely as a result of another disclaimer, but
only if the disclaimed interest or power does not pass to or for the
benefit of the natural guardian as a result of the disclaimer.
(f) Unless a court of competent jurisdiction approves the
disclaimer, a disclaimer by a fiduciary acting in a fiduciary
capacity must be compatible with the fiduciary's fiduciary
obligations. A disclaimer by a fiduciary acting in a fiduciary
capacity is not a per se breach of the fiduciary's fiduciary
obligations.
(g) Possible remedies for a breach of fiduciary obligations
do not include declaring an otherwise effective disclaimer void or
granting other legal or equitable relief that would make the
disclaimer ineffective.
Sec. 240.0081. NOTICE REQUIRED BY TRUSTEE DISCLAIMING
CERTAIN INTERESTS IN PROPERTY; EFFECT OF NOTICE. (a) A trustee
acting in a fiduciary capacity may disclaim an interest in property
that would cause the interest in property not to become trust
property without court approval if the trustee provides written
notice of the disclaimer to all of the current beneficiaries and
presumptive remainder beneficiaries of the trust.
(b) For the purpose of determining who is a current
beneficiary or presumptive remainder beneficiary entitled to the
notice under Subsection (a), a beneficiary is determined as of the
date the notice is sent.
(c) In addition to the notice required under Subsection (a),
the trustee shall give written notice of the trustee's disclaimer
to the attorney general if:
(1) a charity is entitled to notice;
(2) a charity entitled to notice is no longer in
existence;
(3) the trustee has the authority to distribute trust
assets to one or more charities that are not named in the trust
instrument; or
(4) the trustee has the authority to make
distributions for a charitable purpose described in the trust
instrument, but no charity is named as a beneficiary for that
purpose.
(d) If the beneficiary has a court-appointed guardian or
conservator, the notice required to be given by this section must be
given to that guardian or conservator. If the beneficiary is a
minor for whom no guardian or conservator has been appointed, the
notice required to be given by this section must be given to a
parent of the minor.
(e) The trustee is not required to provide the notice to a
beneficiary who:
(1) is known to the trustee and cannot be located by
the trustee after reasonable diligence;
(2) is not known to the trustee;
(3) waives the requirement of the notice under this
section; or
(4) is a descendant of a beneficiary to whom the
trustee has given notice if the beneficiary and the beneficiary's
ancestor have similar interests in the trust and no apparent
conflict of interest exists between them.
(f) The notice required under Subsection (a) must:
(1) include a statement that:
(A) the trustee intends to disclaim an interest
in property;
(B) if the trustee makes the disclaimer, the
property will not become trust property and will not be available to
distribute to the beneficiary from the trust;
(C) the beneficiary has the right to object to
the disclaimer; and
(D) the beneficiary may petition a court to
approve, modify, or deny the disclaimer;
(2) describe the interest in property the trustee
intends to disclaim;
(3) specify the earliest date the trustee intends to
make the disclaimer;
(4) include the name and mailing address of the
trustee;
(5) be given not later than the 30th day before the
date the disclaimer is made; and
(6) be sent by personal delivery, first-class mail,
facsimile, e-mail, or any other method likely to result in the
notice's receipt.
(g) A beneficiary is not considered to have accepted the
disclaimed interest solely because the beneficiary acts or does not
act on receipt of a notice provided under this section.
(h) If the trustee makes the disclaimer for which notice is
provided under this section, the beneficiary does not lose the
beneficiary's right, if any, to sue the trustee for breach of the
trustee's fiduciary obligations in connection with making the
disclaimer. Section 240.008(g) applies to remedies sought in
connection with the alleged breach.
Sec. 240.009. POWER TO DISCLAIM; GENERAL REQUIREMENTS; WHEN
IRREVOCABLE. (a) To be effective, a disclaimer must:
(1) be in writing;
(2) declare the disclaimer;
(3) describe the interest or power disclaimed;
(4) be signed by the person making the disclaimer; and
(5) be delivered or filed in the manner provided by
Subchapter C.
(b) A partial disclaimer may be expressed as a fraction,
percentage, monetary amount, term of years, limitation of a power,
or any other interest or estate in the property.
(c) A disclaimer is irrevocable on the later of the date the
disclaimer:
(1) is delivered or filed under Subchapter C; or
(2) takes effect as provided in Sections
240.051-240.056.
(d) A disclaimer made under this chapter is not a transfer,
assignment, or release.
SUBCHAPTER B. TYPE AND EFFECT OF DISCLAIMER
Sec. 240.0501. DEFINITION. In this subchapter, "future
interest" means an interest that:
(1) takes effect in possession or enjoyment, if at
all, later than the time at which the instrument creating the
interest becomes irrevocable; and
(2) passes to the holder of the interest at the time of
the event that causes the taker of the interest to be finally
ascertained and the interest to be indefeasibly vested.
Sec. 240.051. DISCLAIMER OF INTEREST IN PROPERTY. (a) This
section and Sections 240.0511 and 240.0512 apply to a disclaimer of
an interest in property other than a disclaimer subject to Section
240.052 or 240.053.
(b) If an interest in property passes because of the death
of a decedent:
(1) a disclaimer of the interest:
(A) takes effect as of the time of the decedent's
death; and
(B) relates back for all purposes to the time of
the decedent's death; and
(2) the disclaimed interest is not subject to the
claims of any creditor of the disclaimant.
(c) If an interest in property passes because of an event
not related to the death of a decedent:
(1) a disclaimer of the interest:
(A) takes effect:
(i) as of the time the instrument creating
the interest became irrevocable; or
(ii) in the case of an irrevocable transfer
made without an instrument, at the time of the irrevocable
transfer; and
(B) relates back for all purposes to the time the
instrument became irrevocable or the time of the irrevocable
transfer, as applicable; and
(2) the disclaimed interest is not subject to the
claims of any creditor of the disclaimant.
(d) A disclaimed interest passes according to any provision
in the instrument creating the interest that provides for:
(1) the disposition of the interest if the interest
were to be disclaimed; or
(2) the disposition of disclaimed interests in
general.
(e) If the instrument creating the disclaimed interest does
not contain a provision described by Subsection (d) and:
(1) if the disclaimant is not an individual, the
disclaimed interest passes as if the disclaimant did not exist; or
(2) if the disclaimant is an individual:
(A) except as provided by Section 240.0511, if
the interest is passing because of the death of a decedent, the
disclaimed interest passes as if the disclaimant had died
immediately before the time as of which the disclaimer takes effect
under Subsection (b); or
(B) except as provided by Section 240.0512, if
the interest is passing because of an event not related to the death
of a decedent, the disclaimed interest passes as if the disclaimant
had died immediately before the time as of which the disclaimer
takes effect under Subsection (c).
(f) A disclaimed interest that passes by intestacy passes as
if the disclaimant died immediately before the decedent.
Sec. 240.0511. DISPOSITION OF INTEREST PASSING BECAUSE OF
DECEDENT'S DEATH AND DISCLAIMED BY INDIVIDUAL. (a) Subject to
Subsection (b):
(1) if by law or under the instrument creating the
disclaimed interest the descendants of a disclaimant of an interest
passing because of the death of a decedent would share in the
disclaimed interest by any method of representation under Section
240.051(e)(2)(A), the disclaimed interest passes only to the
descendants of the disclaimant who survive the decedent; or
(2) if the disclaimed interest would have passed to
the disclaimant's estate under Section 240.051(e)(2)(A), the
disclaimed interest instead passes by representation to the
descendants of the disclaimant who survive the decedent.
(b) If no descendant of the disclaimant survives the
decedent, the disclaimed interest passes to those persons,
including the state but excluding the disclaimant, and in such
shares as would succeed to the transferor's intestate estate under
the intestate succession law of the transferor's domicile had the
transferor died immediately before the decedent, except that if the
transferor's surviving spouse is living but remarried before the
decedent's death, the transferor is considered to have died
unmarried immediately before the decedent's death.
(c) On the disclaimer of a preceding interest, a future
interest held by a person other than the disclaimant takes effect as
if the disclaimant had died immediately before the decedent, but a
future interest held by the disclaimant is not accelerated in
possession or enjoyment.
Sec. 240.0512. DISPOSITION OF INTEREST PASSING BECAUSE OF
EVENT OTHER THAN DECEDENT'S DEATH AND DISCLAIMED BY INDIVIDUAL.
(a) Subject to Subsection (b):
(1) if by law or under the instrument creating the
disclaimed interest the descendants of a disclaimant of an interest
passing because of an event not related to the death of a decedent
would share in the disclaimed interest by any method of
representation under Section 240.051(e)(2)(B), the disclaimed
interest passes only to the descendants of the disclaimant living
at the time of the event that causes the interest to pass; or
(2) if the disclaimed interest would have passed to
the disclaimant's estate under Section 240.051(e)(2)(B), the
disclaimed interest instead passes by representation to the
descendants of the disclaimant living at the time of the event that
causes the interest to pass.
(b) If no descendant of the disclaimant is living at the
time of the event described by Subsection (a)(1), the disclaimed
interest passes to those persons, including the state but excluding
the disclaimant, and in such shares as would succeed to the
transferor's intestate estate under the intestate succession law of
the transferor's domicile had the transferor died immediately
before the event described by Subsection (a)(1), except that if the
transferor's surviving spouse is living but remarried before the
event, the transferor is considered to have died unmarried
immediately before the event.
(c) On the disclaimer of a preceding interest, a future
interest held by a person other than the disclaimant takes effect as
if the disclaimant had died immediately before the time the
disclaimer takes effect under Section 240.051(c)(1)(A), but a
future interest held by the disclaimant is not accelerated in
possession or enjoyment.
Sec. 240.052. DISCLAIMER OF RIGHTS IN SURVIVORSHIP
PROPERTY. (a) On the death of a holder of survivorship property, a
surviving holder may disclaim, in whole or in part, an interest in
the property of the deceased holder that would have otherwise
passed to the surviving holder by reason of the deceased holder's
death.
(b) If an interest in survivorship property is disclaimed by
a surviving holder of the property:
(1) the disclaimer:
(A) takes effect as of the time of the deceased
holder's death; and
(B) relates back for all purposes to the time of
the deceased holder's death; and
(2) the disclaimed interest is not subject to the
claims of any creditor of the disclaimant.
(c) An interest in survivorship property disclaimed by a
surviving holder of the property passes as if the disclaimant
predeceased the holder to whose death the disclaimer relates.
Sec. 240.053. DISCLAIMER OF INTEREST BY TRUSTEE. (a) If a
trustee disclaims an interest in property that otherwise would have
become trust property:
(1) the interest does not become trust property;
(2) the disclaimer:
(A) takes effect as of the time the trust became
irrevocable; and
(B) relates back for all purposes to the time the
trust became irrevocable; and
(3) the disclaimed interest is not subject to the
claims of any creditor of the trustee, the trust, or any trust
beneficiary.
(b) If the instrument creating the disclaimed interest
contains a provision that provides for the disposition of the
interest if the interest were to be disclaimed, the disclaimed
interest passes according to that provision.
(c) If the instrument creating the disclaimed interest does
not contain a provision described by Subsection (b), the disclaimed
interest passes as if:
(1) all of the current beneficiaries, presumptive
remainder beneficiaries, and contingent beneficiaries of the trust
affected by the disclaimer who are individuals died before the
trust became irrevocable; and
(2) all beneficiaries of the trust affected by the
disclaimer who are not individuals ceased to exist without
successor organizations and without substitution of beneficiaries
under the cy pres doctrine before the trust became irrevocable.
(d) Subsection (c) applies only for purposes of determining
the disposition of an interest in property disclaimed by a trustee
that otherwise would have become trust property and applies only
with respect to the trust affected by the disclaimer. Subsection
(c) does not apply with respect to other trusts governed by the
instrument and does not apply for other purposes under the
instrument or under the laws of intestacy.
Sec. 240.054. DISCLAIMER OF POWER OF APPOINTMENT OR OTHER
POWER NOT HELD IN FIDUCIARY CAPACITY. (a) If a holder disclaims a
power of appointment or other power not held in a fiduciary
capacity, this section applies.
(b) If the holder:
(1) has not exercised the power, the disclaimer takes
effect as of the time the instrument creating the power becomes
irrevocable; or
(2) has exercised the power and the disclaimer is of a
power other than a presently exercisable general power of
appointment, the disclaimer takes effect immediately after the last
exercise of the power.
(c) The instrument creating the power is construed as if the
power had expired when the disclaimer became effective.
Sec. 240.055. DISCLAIMER BY APPOINTEE OF, OR OBJECT OR
TAKER IN DEFAULT OF EXERCISE OF, POWER OF APPOINTMENT. (a) A
disclaimer of an interest in property by an appointee of a power of
appointment takes effect as of the time the instrument by which the
holder exercises the power becomes irrevocable.
(b) A disclaimer of an interest in property by an object or
taker in default of an exercise of a power of appointment takes
effect as of the time the instrument creating the power becomes
irrevocable.
Sec. 240.056. DISCLAIMER OF POWER HELD IN FIDUCIARY
CAPACITY. (a) If a person designated to serve or serving as a
fiduciary disclaims a power held or to be held in a fiduciary
capacity that has not been exercised, the disclaimer takes effect
as of the time the instrument creating the power becomes
irrevocable.
(b) If a person designated to serve or serving as a
fiduciary disclaims a power held or to be held in a fiduciary
capacity that has been exercised, the disclaimer takes effect
immediately after the last exercise of the power.
(c) A disclaimer subject to this section is effective as to
another person designated to serve or serving as a fiduciary if:
(1) the disclaimer provides that it is effective as to
another person designated to serve or serving as a fiduciary; and
(2) the person disclaiming has the authority to bind
the estate, trust, or other person for whom the person is acting.
Sec. 240.057. TAX QUALIFIED DISCLAIMER. (a) In this
section, "Internal Revenue Code" has the meaning assigned by
Section 111.004.
(b) Notwithstanding any other provision of this chapter,
if, as a result of a disclaimer or transfer, the disclaimed or
transferred interest is treated under the Internal Revenue Code as
never having been transferred to the disclaimant, the disclaimer or
transfer is effective as a disclaimer under this chapter.
Sec. 240.058. PARTIAL DISCLAIMER BY SPOUSE. A disclaimer
by a decedent's surviving spouse of an interest in property
transferred as the result of the death of the decedent is not a
disclaimer by the surviving spouse of any other transfer from the
decedent to or for the benefit of the surviving spouse, regardless
of whether the interest that would have passed under the disclaimed
transfer passes because of the disclaimer to or for the benefit of
the surviving spouse by the other transfer.
SUBCHAPTER C. DELIVERY OR FILING
Sec. 240.101. DELIVERY OR FILING GENERALLY. (a) Subject to
applicable requirements of this subchapter, a disclaimant may
deliver a disclaimer by personal delivery, first-class mail,
facsimile, e-mail, or any other method likely to result in the
disclaimer's receipt.
(b) If a disclaimer is mailed to the intended recipient by
certified mail, return receipt requested, at an address the
disclaimant in good faith believes is likely to result in the
disclaimer's receipt, delivery is considered to have occurred on
the date of mailing regardless of receipt.
Sec. 240.102. DISCLAIMER OF INTEREST CREATED UNDER
INTESTATE SUCCESSION OR WILL. In the case of an interest created
under the law of intestate succession or an interest created by
will, other than an interest in a testamentary trust:
(1) a disclaimer must be delivered to the personal
representative of the decedent's estate; or
(2) if no personal representative is then serving, a
disclaimer must be filed in the official public records of any
county in which the decedent:
(A) was domiciled on the date of the decedent's
death; or
(B) owned real property.
Sec. 240.103. DISCLAIMER OF INTEREST IN TESTAMENTARY TRUST.
In the case of an interest in a testamentary trust:
(1) a disclaimer must be delivered to the trustee then
serving;
(2) if no trustee is then serving, a disclaimer must be
delivered to the personal representative of the decedent's estate;
or
(3) if no trustee or personal representative is then
serving, a disclaimer must be filed in the official public records
of any county in which the decedent:
(A) was domiciled on the date of the decedent's
death; or
(B) owned real property.
Sec. 240.104. DISCLAIMER OF INTEREST IN INTER VIVOS TRUST.
In the case of an interest in an inter vivos trust:
(1) a disclaimer must be delivered to the trustee then
serving, or, if no trustee is then serving, a disclaimer must be
filed:
(A) with a court having jurisdiction to enforce
the trust; or
(B) in the official public records of the county
in which:
(i) the situs of administration of the
trust is maintained; or
(ii) the settlor is domiciled or was
domiciled on the date of the settlor's death; and
(2) if a disclaimer is made before the time the
instrument creating the trust becomes irrevocable, a disclaimer
must be delivered to the settlor of a revocable trust or the
transferor of the interest.
Sec. 240.105. DISCLAIMER OF INTEREST CREATED BY BENEFICIARY
DESIGNATION. (a) In this section, "beneficiary designation" means
an instrument, other than an instrument creating a trust, naming
the beneficiary of:
(1) an annuity or insurance policy;
(2) an account with a designation for payment on
death;
(3) a security registered in beneficiary form;
(4) a pension, profit-sharing, retirement, or other
employment-related benefit plan; or
(5) any other nonprobate transfer at death.
(b) In the case of an interest created by a beneficiary
designation that is disclaimed before the designation becomes
irrevocable, the disclaimer must be delivered to the person making
the beneficiary designation.
(c) In the case of an interest created by a beneficiary
designation that is disclaimed after the designation becomes
irrevocable:
(1) a disclaimer of an interest in personal property
must be delivered to the person obligated to distribute the
interest; and
(2) a disclaimer of an interest in real property must
be recorded in the official public records of the county where the
real property that is the subject of the disclaimer is located.
Sec. 240.106. DISCLAIMER BY SURVIVING HOLDER OF
SURVIVORSHIP PROPERTY. In the case of a disclaimer by a surviving
holder of survivorship property, the disclaimer must be delivered
to the person to whom the disclaimed interest passes.
Sec. 240.107. DISCLAIMER BY OBJECT OR TAKER IN DEFAULT OF
EXERCISE OF POWER OF APPOINTMENT. In the case of a disclaimer by an
object or taker in default of an exercise of a power of appointment
at any time after the power was created:
(1) the disclaimer must be delivered to the holder of
the power or to the fiduciary acting under the instrument that
created the power; or
(2) if no fiduciary is then serving, the disclaimer
must be filed:
(A) with a court having authority to appoint the
fiduciary; or
(B) in the official public records of the county
in which the creator of the power is domiciled or was domiciled on
the date of the creator's death.
Sec. 240.108. DISCLAIMER BY CERTAIN APPOINTEES. In the
case of a disclaimer by an appointee of a nonfiduciary power of
appointment:
(1) the disclaimer must be delivered to the holder,
the personal representative of the holder's estate, or the
fiduciary under the instrument that created the power; or
(2) if no fiduciary is then serving, the disclaimer
must be filed:
(A) with a court having authority to appoint the
fiduciary; or
(B) in the official public records of the county
in which the creator of the power is domiciled or was domiciled on
the date of the creator's death.
Sec. 240.109. DISCLAIMER BY CERTAIN FIDUCIARIES. In the
case of a disclaimer by a fiduciary of a power over a trust or
estate, the disclaimer must be delivered as provided by Section
240.102, 240.103, or 240.104 as if the power disclaimed were an
interest in property.
Sec. 240.110. DISCLAIMER OF POWER BY AGENT. In the case of
a disclaimer of a power by an agent, the disclaimer must be
delivered to the principal or the principal's representative.
Sec. 240.111. RECORDING OF DISCLAIMER. If an instrument
transferring an interest in or power over property subject to a
disclaimer is required or authorized by law to be filed, recorded,
or registered, the disclaimer may be filed, recorded, or registered
as that instrument. Except as otherwise provided by Section
240.105(c)(2), failure to file, record, or register the disclaimer
does not affect the disclaimer's validity between the disclaimant
and persons to whom the property interest or power passes by reason
of the disclaimer.
SUBCHAPTER D. DISCLAIMER BARRED OR LIMITED
Sec. 240.151. WHEN DISCLAIMER BARRED OR LIMITED. (a) A
disclaimer is barred by a written waiver of the right to disclaim.
(b) A disclaimer of an interest in property is barred if any
of the following events occur before the disclaimer becomes
effective:
(1) the disclaimant accepts the interest sought to be
disclaimed by:
(A) taking possession of the interest; or
(B) exercising dominion and control over the
interest;
(2) the disclaimant voluntarily assigns, conveys,
encumbers, pledges, or transfers the interest sought to be
disclaimed or contracts to do so; or
(3) the interest sought to be disclaimed is sold under
a judicial sale.
(c) The acceptance of an interest in property by a person in
the person's fiduciary capacity is not an acceptance of the
interest in the person's individual capacity and does not bar the
person from disclaiming the interest in the person's individual
capacity.
(d) A disclaimer, in whole or in part, of the future
exercise of a power held in a fiduciary capacity is not barred by
the previous exercise of the power.
(e) A disclaimer, in whole or in part, of the future
exercise of a power not held in a fiduciary capacity is not barred
by the previous exercise of the power unless the power is
exercisable in favor of the disclaimant.
(f) A disclaimer of:
(1) a power over property that is barred by this
section is ineffective; and
(2) an interest in property that is barred by this
section takes effect as a transfer of the interest disclaimed to the
persons who would have taken the interest under Subchapter B had the
disclaimer not been barred.
(g) A disclaimer by a child support obligor is barred as to
disclaimed property that could be applied to satisfy the
disclaimant's child support obligations if those obligations have
been:
(1) administratively determined by the Title IV-D
agency as defined by Section 101.033, Family Code, in a Title IV-D
case as defined by Section 101.034, Family Code; or
(2) confirmed and reduced to judgment as provided by
Section 157.263, Family Code.
(h) If Subsection (g) applies, the child support obligee to
whom child support arrearages are owed may enforce the child
support obligation against the disclaimant as to disclaimed
property by a lien or by any other remedy provided by law.
SECTION 16. The following provisions are repealed:
(1) Sections 122.003, 122.004, and 122.005, Estates
Code;
(2) Subchapters B, C, and D, Chapter 122, Estates
Code;
(3) Section 122.203, Estates Code; and
(4) Sections 112.010(c), (c-1), (c-2), (d), and (e),
Property Code.
SECTION 17. Title 13, Property Code, as added by this Act,
applies to an interest in or power over property existing on or
after the effective date of this Act if the time for delivering or
filing a disclaimer under former law, including the time for filing
a written memorandum of disclaimer under Section 122.055, Estates
Code, the time for delivering notice of the disclaimer under
Section 122.056, Estates Code, or the time for delivering a written
memorandum of disclaimer under Section 112.010, Property Code, as
those sections existed immediately before the effective date of
this Act, has not elapsed. If the time for filing or delivering
notice of a written memorandum of disclaimer under former law has
elapsed, the former law applies and is continued in effect for that
purpose.
SECTION 18. Sections 122.201, 122.202, 122.204, and
122.205, Estates Code, as amended by this Act, apply to property or
an interest in or power over property existing on or after the
effective date of this Act if the time for delivering or filing an
assignment under former law, including the time for filing an
assignment under Section 122.202, Estates Code, or the time for
delivering notice of the filing of assignment under Section
122.203, Estates Code, as those sections existed immediately before
the effective date of this Act, has not elapsed. If the time for
filing or delivering notice of an assignment under former law has
elapsed, the former law applies and is continued in effect for that
purpose.
SECTION 19. This Act takes effect September 1, 2015.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2428 was passed by the House on April
30, 2015, by the following vote: Yeas 139, Nays 0, 1 present, not
voting; and that the House concurred in Senate amendments to H.B.
No. 2428 on May 23, 2015, by the following vote: Yeas 131, Nays 0,
1 present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 2428 was passed by the Senate, with
amendments, on May 22, 2015, by the following vote: Yeas 31, Nays
0.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor