Renunciation And Disclaimer of Real Property Interest
Disclaimer of Property Interest-West Virginia
West Virginia Code
CHAPTER 42. DESCENT AND DISTRIBUTION.
ARTICLE 6. UNIFORM DISCLAIMER OF PROPERTY
Title.
This article may be cited as the "Uniform Disclaimer
of Property Interests Act."
Chap. 42, Article 6, §42-6-1.
Right to disclaim interest in property.
A person, or the representative of a deceased,
incapacitated or protected 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 article. The right to disclaim exists notwithstanding
any limitation on the interest of the disclaimant in the nature of a spendthrift
provision or similar restriction.
Chap. 42, Article 6, §42-6-2.
Time of disclaimer; delivery.
(a) Except as provided in subsection (c) of this section
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 six 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 six months after the event determining
that the taker of the property or interest has become finally ascertained
and his interest is indefeasibly vested. 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. A fully executed
and acknowledged copy of the disclaimer shall be filed and recorded with
the probate documents in the office of the clerk of the county commission
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) 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
six months after the effective date of the nontestamentary instrument or
contract and, as to a future interest, not later than six months after
the event determining that the taker of the property or interest has become
finally ascertained and his interest indefeasibly vested. 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 six months
after he has actual knowledge of the existence of the interest. The effective
date of a revocable instrument or contract is the date on which the maker
no longer has power to revoke it or to transfer to himself or another the
entire legal and equitable ownership of the interest. 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 the thirty-first day of December, one thousand nine hundred
seventy-six, and subject to tax under chapters eleven, twelve or thirteen
of the Internal Revenue Code of 1954, as amended, a disclaimer intended
as a qualified disclaimer thereunder must specifically so state and must
be delivered not later than nine months after the later of the date the
transfer is made or the day on which the person disclaiming attains age
twenty-one.
(d) A surviving joint tenant may disclaim as a separate interest
any property or interest therein devolving to him by right of survivorship.
A surviving joint tenant may disclaim the entire interest in any property
or interest therein that is the subject of a joint tenancy devolving to
him, if the joint tenancy was created by act of a deceased joint tenant
and the survivor did not join in creating the joint tenancy.
(e) If real property or an interest therein is disclaimed, in addition
to recording the disclaimer in the county wherein administration is had
or commenced, a fully executed and acknowledged copy of the disclaimer
shall be recorded in the deed books in the office of the clerk of the county
commission of the county in which the property or interest disclaimed is
located.
Chap. 42, Article 6, §42-6-3.
Form of disclaimer.
The disclaimer shall (a) describe the property
or interest disclaimed, (b) declare the disclaimer and extent thereof,
(c) be signed by the disclaimant and (d) be acknowledged in such a manner
as would authorize a deed to be admitted to record.
Chap. 42, Article 6, §42-6-4.
Effect of disclaimer.
(a) 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. 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. 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) 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, (1) it devolves as if the disclaimant
had died before the effective date of the instrument or contract; and
(2) 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. 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.
(c) The disclaimer or the written waiver of the right to disclaim
is binding upon the disclaimant or person waiving and all persons claiming
through or under him.
Chap. 42, Article 6, §42-6-5.
Waiver and bar.
The right to disclaim property or an interest
therein is barred by (a) an assignment, conveyance, encumbrance, pledge
or transfer of the property or interest, or a contract therefor, (b) a
written waiver of the right to disclaim, (c) an acceptance of the property
or interest or a benefit thereunder or (d) a sale of the property or interest
under judicial sale made before the disclaimer is effective.
Chap. 42, Article 6, §42-6-6.
Remedy not exclusive.
This article does not abridge the right of a person
to waive, release, disclaim or renounce property or an interest therein
under any other statute.
Chap. 42, Article 6, §42-6-7.
Application.
An interest in property that exists on the effective
date of this article [May 5, 1982] as to which, if a present interest,
the time for delivering a disclaimer under this article has not expired
or, if a future interest, the interest has not become indefeasibly vested
or the taker finally ascertained, may be disclaimed within six months after
the effective date of this article.
Chap. 42, Article 6, §42-6-8.
