Bill Text: TX HB2428 | 2015-2016 | 84th Legislature | Enrolled
Bill Title: Relating to the adoption of the Texas Uniform Disclaimer of Property Interests Act.
Spectrum: Bipartisan Bill
Status: (Passed) 2015-06-16 - Effective on 9/1/15 [HB2428 Detail]
Download: Texas-2015-HB2428-Enrolled.html
H.B. No. 2428 |
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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, [ |
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SECTION 2. The heading to Subchapter A, Chapter 122, | ||
Estates Code, is amended to read as follows: | ||
SUBCHAPTER A. [ |
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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 [ |
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(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 [ |
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Sec. 122.002. DISCLAIMER [ |
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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 [ |
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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, [ |
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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 [ |
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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, [ |
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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 [ |
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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 [ |
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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 | ||
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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 [ |
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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 [ |
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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 [ |
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SECTION 13. The heading to Section 112.010, Property Code, | ||
is amended to read as follows: | ||
Sec. 112.010. PRESUMED ACCEPTANCE [ |
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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 [ |
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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 |