Arkansas Renunciation and Disclaimer of Property from Will by Testate
Arkansas Code
Title 28. Wills, Estates, and Fiduciary Relationships.
Subtitle 1. General Provisions.
Chapter 2. Disclaimer Of Property.
Right to disclaim interest in property.
(a) A person or a representative of a deceased, incapacitated,
or incompetent person to whom any property or interest therein devolves,
by whatever means, may disclaim it in whole or in part by delivering a
written disclaimer under this chapter.
(b) A disclaimer may be of a fractional share or any limited interest
or estate.
(c) The right to disclaim granted by this chapter shall exist irrespective
of any limitations imposed upon the interest of the disclaimant in the
nature of an expressed or implied spendthrift provision or similar restriction.
(d) This chapter does not abridge the right of any person to waive,
release, disclaim, or renounce property or an interest therein under any
other statute.
Title 28, Subtitle 1, Chap. 2, §28-2-101.
Waiver and bar.
The right to disclaim property or an interest therein is barred
by:
(1) An assignment, conveyance, encumbrance, pledge, or
transfer of the property or interest, or a contract therefor;
(2) A written waiver of the right to disclaim;
(3) An acceptance of the property or interest or a benefit thereunder;
(4) A sale of the property or interest under judicial sale made
before the disclaimer is effected.
Title 28, Subtitle 1, Chap. 2, §28-2-102.
Minor, incompetent, or deceased beneficiary.
A guardian of the property or an executor or
administrator of the estate of a minor, incompetent, or deceased beneficiary
may, if the fiduciary deems it to be in the best interest of those concerned
with the estate of the beneficiary and of those who will take the beneficiary's
interest by virtue of the disclaimer and is not detrimental to the best
interest of the beneficiary, with or without an order of the court having
jurisdiction, shall execute and file a disclaimer on behalf of the beneficiary
within the time and in the manner in which the beneficiary himself could
disclaim if he were living, of legal age, or competent.
Title 28, Subtitle 1, Chap. 2, §28-2-103.
Joint interests.
(a) A surviving joint tenant or tenant by the entireties
may disclaim as a separate interest any property or interest therein devolving
to him by right of survivorship.
(b) A surviving joint tenant or tenant by the entireties may disclaim
the entire interest in any property or interest therein that is the subject
of a joint tenancy or tenancy by the entireties devolving to him, if the
joint tenancy or tenancy by the entireties was created by act of a deceased
joint tenant or tenant by the entireties and the survivor did not join
in creating the joint tenancy or the tenancy by the entireties.
However, if the survivor did join in creating the joint tenancy
or the tenancy by the entireties, then the survivor may disclaim only the
incremental interest acquired by the survivor by virtue of the death of
the deceased joint tenant or tenant by the entireties.
Title 28, Subtitle 1, Chap. 2, §28-2-104.
Agents or attorneys.
A disclaimant may, if he desires, execute and
file a disclaimer by agent or attorney lawfully empowered.
Title 28, Subtitle 1, Chap. 2, §28-2-105.
Form of disclaimer.
The disclaimer shall describe the property or
interest disclaimed, declare the disclaimer and extent thereof, and be
signed by the disclaimant.
Title 28, Subtitle 1, Chap. 2, §28-2-106.
Time of disclaimer - Delivery.
(a)
(1) Except as provided in subsection (c), if the property
or interest has devolved to the disclaimant under a testamentary instrument
or by the laws of intestacy, the disclaimer shall be delivered, as to a
present interest, not later than nine (9) months after the death of the
deceased owner or deceased donee of a power of appointment and, as to a
future interest, not later than nine (9) months after the event determining
that the taker of the property or interest has become finally ascertained
and his interest is indefeasibly vested.
(2) The disclaimer shall be delivered in person or mailed by registered
or certified mail to any personal representative or other fiduciary of
the decedent or the donee of the power, to the holder of the legal title
to which the interest relates, or to the person entitled to the property
or interest in the event of disclaimer.
(3) A copy of the disclaimer shall be filed in the probate court
of the county in which proceedings for the administration of the estate
of the deceased owner or deceased donee of the power have been commenced.
(b)
(1)
(A) Except as provided in subsection (c), if the property
or interest has devolved to the disclaimant under a nontestamentary instrument
or contract, the disclaimer shall be delivered, as to a present interest,
not later than nine (9) months after the effective date of the nontestamentary
instrument or contract and, as to a future interest, not later than nine
(9) months after the event determining that the taker of the property or
interest has become finally ascertained and his interest indefeasibly vested.
(B) If the person entitled to disclaim does not have actual knowledge
of the existence of the interest, the disclaimer shall be delivered not
later than nine (9) months after he has actual knowledge of the existence
of the interest.
(2) The disclaimer shall be delivered in person or mailed by registered
or certified mail to the person who has legal title to or possession of
the interest disclaimed.
(c) In any case, as to a transfer creating an interest in the disclaimant
made after December 31, 1976, and subject to tax under chapters 11, 12,
or 13 of the Internal Revenue Code of 1954, as amended, a disclaimer intended
as a qualified disclaimer must specifically so state and must be delivered
not later than nine (9) months after the later of either the date the transfer
is made or the day on which the person disclaiming attains age twenty-one
(21) years.
Title 28, Subtitle 1, Chap. 2, §28-2-107.
Effect of disclaimer generally.
(a)
(1) If the property or interest devolved to a disclaimant
under a testamentary instrument or under the laws of intestacy and the
deceased owner or donee of a power of appointment has not provided for
another disposition, it devolves as if the disclaimant had predeceased
the decedent or, if the disclaimant was designated to take under a power
of appointment exercised by a testamentary instrument, as if the disclaimant
had predeceased the donee of the power.
(2) Any future interest that takes effect in possession or enjoyment
after the termination of the estate or interest disclaimed takes effect
as if the disclaimant had died before the event determining that the taker
of the property or interest had become finally ascertained and his interest
is indefeasibly vested.
(3) A disclaimer relates back for all purposes to the date of death
of the decedent or of the donee of the power or the determinative event
as the case may be.
(b)
(1) If the property or interest devolved to a disclaimant
under a nontestamentary instrument or contract and the instrument or contract
does not provide for another disposition:
(A) It devolves as if the disclaimant had died before the
effective date of the instrument or contract; and
(B) A future interest that takes effect in possession or enjoyment
at or after the termination of the disclaimed interest takes effect as
if the disclaimant had died before the event determining that the taker
of the property or interest had become finally ascertained and his interest
indefeasibly vested.
(2) A disclaimer relates back for all purposes to the effective date
of the instrument or contract or the date of the determinative event, as
the case may be. The effective date of a revocable instrument or contract
is the date on which the maker no longer has power to revoke it or to transfer
to himself or another the entire legal equitable ownership of the interest.
(c) The disclaimer or the written waiver of the right to disclaim is
binding upon the disclaimant or persons waiving and all persons claiming
through or under him.
Title 28, Subtitle 1, Chap. 2, §28-2-108.
Disclaimer of interest in real property.
(a) If real property or an interest therein is disclaimed,
a copy of the disclaimer shall be recorded in the office of the circuit
clerk of the county in which the property or interest disclaimed is located.
(b) If an interest in or relating to real property is disclaimed
and duly recorded as provided in this section, the spouse of the person
entering the disclaimer, if the spouse has consented to the disclaimer
in writing, shall be automatically debarred from any dower or curtesy interest
in the real estate to which the spouse would have been lawfully entitled
except for the disclaimer.
Title 28, Subtitle 1, Chap. 2, §28-2-109.
