Bill Text: TX SB994 | 2015-2016 | 84th Legislature | Introduced

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Bill Title: Relating to the adoption of the Texas Uniform Disclaimer of Property Interests Act.

Sponsorship: Partisan Bill (Democrat 1)

Status: (Introduced - Dead) 2015-03-10 - Referred to State Affairs [SB994 Detail]

Download: Texas-2015-SB994-Introduced.html

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84R12447 KFF-F
By: Rodríguez S.B. No. 994

A BILL TO BE ENTITLED
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. 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) "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;
(C) the ward to whom a disclaimed interest or
power would have passed had the disclaimer not been made by the
guardian of the ward's estate; or
(D) the trust into which a disclaimed interest or
power would have passed had the disclaimer not been made by the
trustee of the trust.
(2) "Disclaimed interest" means the interest that
would have passed to the disclaimant had the disclaimer not been
made.
(3) "Disclaimed power" means the power that would have
been possessed by the disclaimant had the disclaimer not been made.
(4) "Disclaimer" means the refusal to accept an
interest in or power over property.
(5) "Estate" has the meaning assigned by Section
22.012, Estates Code.
(6) "Guardian" has the meaning assigned by Section
1002.012, Estates Code.
(7) "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.
(8) 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.
(9) "Personal representative" has the meanings
assigned by Sections 22.031 and 1002.028, Estates Code.
(10) "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.
(11) "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.
(12) "Trust" means a trust described in Section
111.003.
(13) "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 law 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
similar to this chapter.
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) 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, held in a fiduciary capacity.
(b) A person designated to serve or serving as a fiduciary
may disclaim a power under this section even if:
(1) the creator of the 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.
Sec. 240.008. POWER TO DISCLAIM BY FIDUCIARY ACTING IN
FIDUCIARY CAPACITY. (a) Subject to Subsection (e) 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, 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.
(b) A fiduciary acting in a fiduciary capacity may disclaim
an interest or power under this section even if the creator of the
power or duty imposed a spendthrift provision or similar
restriction on transfer or a restriction or limitation on the right
to disclaim, or an instrument other than the instrument that
created the fiduciary relationship imposed a restriction or
limitation on the right to disclaim.
(c) Except for a disclaimer by a personal representative
subject to court supervision or a disclaimer by the trustee of a
management trust described in Chapter 1301, Estates Code, 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.
(d) 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.
(e) A disclaimer by a fiduciary acting in a fiduciary
capacity must be compatible with the fiduciary's fiduciary
obligations, unless a court of proper jurisdiction orders
otherwise.
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. 240.051. DISCLAIMER OF INTEREST IN PROPERTY. (a) In
this section:
(1) "Future interest" means an interest that takes
effect in possession or enjoyment, if at all, later than the time of
the interest's creation.
(2) "Time of distribution" means the time when a
disclaimed interest would have taken effect in possession or
enjoyment.
(b) This section applies to a disclaimer of an interest in
property other than a disclaimer subject to Section 240.052 or
240.053.
(c) A disclaimer takes effect as of the time the instrument
creating the interest becomes irrevocable, or, if the interest
arose under the law of intestate succession, as of the time of the
intestate's death.
(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 otherwise provided in Paragraph (B)
or (C), the disclaimed interest passes as if the disclaimant had
died immediately before the time of distribution;
(B) if by law or under the instrument the
descendants of a disclaimant would share in the disclaimed interest
by any method of representation had the disclaimant died before the
time of distribution, the disclaimed interest passes only to the
descendants of the disclaimant who survive the time of
distribution; and
(C) if the disclaimed interest would have passed
to the disclaimant's estate had the disclaimant died before the
time of distribution, the disclaimed interest instead passes by
representation to the descendants of the disclaimant who survive
the time of distribution.
(f) If a descendant of the disclaimant does not survive the
time of distribution under Subsection (e)(2)(C), the disclaimed
interest passes to those persons, including the state but excluding
the disclaimant, and in such shares as would have succeeded to the
transferor's intestate estate under the intestate succession law of
the transferor's domicile had the transferor died at the time of
distribution, except that if the transferor's surviving spouse is
living but is remarried at the time of distribution, the transferor
is considered to have died unmarried at the time of distribution.
(g) 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 or ceased to exist immediately before
the time of distribution, 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:
(1) if the survivorship property is held by a
community property survivorship agreement defined by Section
112.001, Estates Code, one-half of the survivorship property; or
(2) if the survivorship property is held by an
agreement described in Section 111.001, Estates Code, or in a joint
account held by an agreement described in Section 113.151, Estates
Code, the greater of:
(A) a fractional share of the property determined
by dividing the number one by the number of holders alive
immediately before the death of the holder to whose death the
disclaimer relates; or
(B) all of the property except that part of the
value of the entire interest attributable to the contribution
furnished by the disclaimant.
(b) A disclaimer under Subsection (a) takes effect as of the
death of the holder of survivorship property to whose death the
disclaimer relates.
(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. If a
trustee disclaims an interest in property that otherwise would have
become trust property, the interest does not become trust property.
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, 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. 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 of 1986 or any successor law as
never having been transferred to the disclaimant, the disclaimer or
transfer is effective as a disclaimer under this chapter.
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 the date 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 the
county in which the decedent:
(A) was domiciled; 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 the county in which the decedent:
(A) was domiciled; 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 at the date of the settlor's death; or
(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 OF CERTAIN POWERS OF APPOINTMENT.
In the case of a disclaimer by an object or taker in default of
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, a 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 at
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 at
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;
(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) 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.
(d) 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.
(e) A disclaimer is barred or limited if provided by other
law.
(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) 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 2. The heading to Chapter 122, Estates Code, is
amended to read as follows:
CHAPTER 122. [DISCLAIMERS AND] ASSIGNMENTS
SECTION 3. 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 4. 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 5. 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 6. Section 122.205, Estates Code, is amended to
read as follows:
Sec. 122.205. GIFT. An assignment under this chapter
[subchapter] is a gift to the assignee and is not a disclaimer under
Chapter 240, Property Code [Subchapters A, B, C, and D].
SECTION 7. Section 122.206, Estates Code, is amended to
read as follows:
Sec. 122.206. SPENDTHRIFT PROVISION. An assignment of
property or interest that would defeat a spendthrift provision
imposed in a trust may not be made under this chapter [subchapter].
SECTION 8. The following provisions are repealed:
(1) Subchapters A, B, C, and D, Chapter 122, Estates
Code;
(2) the heading to Subchapter E, Chapter 122, Estates
Code;
(3) Section 122.203, Estates Code; and
(4) Sections 112.010(b), (c), (c-1), (c-2), (d), and
(e), Property Code.
SECTION 9. 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, or the time for delivering notice of the disclaimer under
Section 122.056, 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 a written memorandum
of disclaimer under former law has elapsed, the former law applies
and is continued in effect for that purpose.
SECTION 10. Chapter 122, Estates Code, as amended by this
Act, applies to property or an interest in or power 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 11. This Act takes effect September 1, 2015.