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A BILL TO BE ENTITLED
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AN ACT
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relating to the adoption of the Texas Uniform Disclaimer of |
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Property Interests Act. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. The Property Code is amended by adding Title 13 |
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to read as follows: |
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TITLE 13. DISCLAIMER OF PROPERTY INTERESTS |
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CHAPTER 240. TEXAS UNIFORM DISCLAIMER OF PROPERTY INTERESTS ACT |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 240.001. SHORT TITLE. This chapter may be cited as the |
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"Texas Uniform Disclaimer of Property Interests Act." |
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Sec. 240.002. DEFINITIONS. In this chapter: |
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(1) "Disclaimant" means: |
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(A) the person to whom a disclaimed interest or |
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power would have passed had the disclaimer not been made; |
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(B) the estate to which a disclaimed interest or |
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power would have passed had the disclaimer not been made by the |
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personal representative of the estate; |
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(C) the ward to whom a disclaimed interest or |
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power would have passed had the disclaimer not been made by the |
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guardian of the ward's estate; or |
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(D) the trust into which a disclaimed interest or |
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power would have passed had the disclaimer not been made by the |
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trustee of the trust. |
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(2) "Disclaimed interest" means the interest that |
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would have passed to the disclaimant had the disclaimer not been |
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made. |
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(3) "Disclaimed power" means the power that would have |
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been possessed by the disclaimant had the disclaimer not been made. |
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(4) "Disclaimer" means the refusal to accept an |
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interest in or power over property. |
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(5) "Estate" has the meaning assigned by Section |
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22.012, Estates Code. |
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(6) "Guardian" has the meaning assigned by Section |
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1002.012, Estates Code. |
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(7) "Fiduciary" means a personal representative, a |
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trustee, an attorney in fact or agent acting under a power of |
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attorney, or any other person authorized to act as a fiduciary with |
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respect to the property of another person. |
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(8) Notwithstanding Section 311.005, Government Code, |
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"person" means an individual, corporation, including a public |
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corporation, business trust, partnership, limited liability |
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company, association, joint venture, governmental entity, |
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including a political subdivision, agency, or instrumentality, or |
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any other legal entity. |
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(9) "Personal representative" has the meanings |
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assigned by Sections 22.031 and 1002.028, Estates Code. |
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(10) "State" means a state of the United States, the |
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District of Columbia, Puerto Rico, the United States Virgin |
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Islands, or any territory or insular possession subject to the |
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jurisdiction of the United States. The term includes an Indian |
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tribe or band, or Alaskan native village, recognized by federal law |
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or formally acknowledged by a state. |
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(11) "Survivorship property" means property held in |
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the name of two or more persons under an arrangement in which, on |
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the death of one of the persons, the property passes to and is |
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vested in the other person or persons. The term includes: |
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(A) property held by an agreement described in |
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Section 111.001, Estates Code; |
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(B) property held by a community property |
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survivorship agreement defined in Section 112.001, Estates Code; |
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and |
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(C) property in a joint account held by an |
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agreement described in Section 113.151, Estates Code. |
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(12) "Trust" means a trust described in Section |
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111.003. |
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(13) "Ward" has the meaning assigned by Section |
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22.033, Estates Code. |
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Sec. 240.003. APPLICABILITY OF CHAPTER. This chapter |
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applies to disclaimers of any interest in or power over property, |
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whenever created. |
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Sec. 240.004. CHAPTER SUPPLEMENTED BY OTHER LAW. (a) |
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Unless displaced by a provision of this chapter, the principles of |
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law and equity supplement this chapter. |
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(b) This chapter does not limit any right of a person to |
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waive, release, disclaim, or renounce an interest in or power over |
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property under a law other than this chapter. |
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Sec. 240.005. UNIFORMITY OF APPLICATION AND CONSTRUCTION. |
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In applying and construing this chapter, consideration must be |
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given to the need to promote uniformity of the law, with respect to |
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the subject matter of this chapter, among states that enact a law |
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similar to this chapter. |
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Sec. 240.006. POWER TO DISCLAIM BY PERSON OTHER THAN |
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FIDUCIARY. (a) A person other than a fiduciary may disclaim, in |
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whole or in part, any interest in or power over property, including |
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a power of appointment. |
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(b) A person other than a fiduciary may disclaim an interest |
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or power under this section even if the creator of the interest or |
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power imposed a spendthrift provision or similar restriction on |
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transfer or a restriction or limitation on the right to disclaim. |
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Sec. 240.007. POWER TO DISCLAIM POWER HELD IN FIDUCIARY |
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CAPACITY BY PERSON DESIGNATED TO SERVE AS OR SERVING AS FIDUCIARY. |
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(a) Except to the extent the person's right to disclaim is |
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expressly restricted or limited by a law of this state or by the |
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instrument creating the fiduciary relationship, a person |
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designated to serve or serving as a fiduciary may disclaim, in whole |
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or in part, any power over property, including a power of |
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appointment, held in a fiduciary capacity. |
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(b) A person designated to serve or serving as a fiduciary |
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may disclaim a power under this section even if: |
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(1) the creator of the power imposed a spendthrift |
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provision or similar restriction on transfer or a restriction or |
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limitation on the right to disclaim; or |
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(2) an instrument other than the instrument that |
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created the fiduciary relationship imposed a restriction or |
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limitation on the right to disclaim. |
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Sec. 240.008. POWER TO DISCLAIM BY FIDUCIARY ACTING IN |
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FIDUCIARY CAPACITY. (a) Subject to Subsection (e) and except to |
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the extent the fiduciary's right to disclaim is expressly |
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restricted or limited by a law of this state or by the instrument |
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creating the fiduciary relationship, a fiduciary acting in a |
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fiduciary capacity may disclaim, in whole or in part, any interest |
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in or power over property, including a power of appointment, that |
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would have passed to the ward, estate, trust, or principal with |
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respect to which the fiduciary was acting had the disclaimer not |
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been made. |
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(b) A fiduciary acting in a fiduciary capacity may disclaim |
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an interest or power under this section even if the creator of the |
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power or duty imposed a spendthrift provision or similar |
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restriction on transfer or a restriction or limitation on the right |
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to disclaim, or an instrument other than the instrument that |
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created the fiduciary relationship imposed a restriction or |
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limitation on the right to disclaim. |
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(c) Except for a disclaimer by a personal representative |
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subject to court supervision or a disclaimer by the trustee of a |
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management trust described in Chapter 1301, Estates Code, a |
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disclaimer by a fiduciary acting in a fiduciary capacity does not |
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require court approval to be effective unless the instrument that |
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created the fiduciary relationship requires court approval. |
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(d) In the absence of a court-appointed guardian, without |
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court approval, a natural guardian as described by Section |
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1104.051, Estates Code, may disclaim on behalf of a minor child of |
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the natural guardian, in whole or in part, any interest in or power |
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over property, including a power of appointment, that the minor |
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child is to receive solely as a result of another disclaimer, but |
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only if the disclaimed interest or power does not pass to or for the |
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benefit of the natural guardian as a result of the disclaimer. |
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(e) A disclaimer by a fiduciary acting in a fiduciary |
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capacity must be compatible with the fiduciary's fiduciary |
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obligations, unless a court of proper jurisdiction orders |
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otherwise. |
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Sec. 240.009. POWER TO DISCLAIM; GENERAL REQUIREMENTS; WHEN |
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IRREVOCABLE. (a) To be effective, a disclaimer must: |
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(1) be in writing; |
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(2) declare the disclaimer; |
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(3) describe the interest or power disclaimed; |
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(4) be signed by the person making the disclaimer; and |
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(5) be delivered or filed in the manner provided by |
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Subchapter C. |
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(b) A partial disclaimer may be expressed as a fraction, |
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percentage, monetary amount, term of years, limitation of a power, |
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or any other interest or estate in the property. |
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(c) A disclaimer is irrevocable on the later of the date the |
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disclaimer: |
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(1) is delivered or filed under Subchapter C; or |
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(2) takes effect as provided in Sections |
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240.051-240.056. |
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(d) A disclaimer made under this chapter is not a transfer, |
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assignment, or release. |
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SUBCHAPTER B. TYPE AND EFFECT OF DISCLAIMER |
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Sec. 240.051. DISCLAIMER OF INTEREST IN PROPERTY. (a) In |
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this section: |
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(1) "Future interest" means an interest that takes |
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effect in possession or enjoyment, if at all, later than the time of |
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the interest's creation. |
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(2) "Time of distribution" means the time when a |
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disclaimed interest would have taken effect in possession or |
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enjoyment. |
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(b) This section applies to a disclaimer of an interest in |
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property other than a disclaimer subject to Section 240.052 or |
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240.053. |
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(c) A disclaimer takes effect as of the time the instrument |
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creating the interest becomes irrevocable, or, if the interest |
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arose under the law of intestate succession, as of the time of the |
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intestate's death. |
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(d) A disclaimed interest passes according to any provision |
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in the instrument creating the interest that provides for: |
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(1) the disposition of the interest if the interest |
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were to be disclaimed; or |
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(2) the disposition of disclaimed interests in |
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general. |
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(e) If the instrument creating the disclaimed interest does |
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not contain a provision described by Subsection (d) and: |
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(1) if the disclaimant is not an individual, the |
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disclaimed interest passes as if the disclaimant did not exist; or |
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(2) if the disclaimant is an individual: |
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(A) except as otherwise provided in Paragraph (B) |
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or (C), the disclaimed interest passes as if the disclaimant had |
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died immediately before the time of distribution; |
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(B) if by law or under the instrument the |
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descendants of a disclaimant would share in the disclaimed interest |
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by any method of representation had the disclaimant died before the |
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time of distribution, the disclaimed interest passes only to the |
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descendants of the disclaimant who survive the time of |
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distribution; and |
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(C) if the disclaimed interest would have passed |
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to the disclaimant's estate had the disclaimant died before the |
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time of distribution, the disclaimed interest instead passes by |
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representation to the descendants of the disclaimant who survive |
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the time of distribution. |
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(f) If a descendant of the disclaimant does not survive the |
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time of distribution under Subsection (e)(2)(C), the disclaimed |
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interest passes to those persons, including the state but excluding |
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the disclaimant, and in such shares as would have succeeded to the |
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transferor's intestate estate under the intestate succession law of |
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the transferor's domicile had the transferor died at the time of |
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distribution, except that if the transferor's surviving spouse is |
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living but is remarried at the time of distribution, the transferor |
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is considered to have died unmarried at the time of distribution. |
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(g) On the disclaimer of a preceding interest, a future |
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interest held by a person other than the disclaimant takes effect as |
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if the disclaimant had died or ceased to exist immediately before |
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the time of distribution, but a future interest held by the |
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disclaimant is not accelerated in possession or enjoyment. |
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Sec. 240.052. DISCLAIMER OF RIGHTS IN SURVIVORSHIP |
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PROPERTY. (a) On the death of a holder of survivorship property, a |
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surviving holder may disclaim, in whole or in part: |
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(1) if the survivorship property is held by a |
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community property survivorship agreement defined by Section |
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112.001, Estates Code, one-half of the survivorship property; or |
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(2) if the survivorship property is held by an |
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agreement described in Section 111.001, Estates Code, or in a joint |
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account held by an agreement described in Section 113.151, Estates |
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Code, the greater of: |
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(A) a fractional share of the property determined |
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by dividing the number one by the number of holders alive |
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immediately before the death of the holder to whose death the |
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disclaimer relates; or |
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(B) all of the property except that part of the |
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value of the entire interest attributable to the contribution |
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furnished by the disclaimant. |
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(b) A disclaimer under Subsection (a) takes effect as of the |
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death of the holder of survivorship property to whose death the |
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disclaimer relates. |
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(c) An interest in survivorship property disclaimed by a |
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surviving holder of the property passes as if the disclaimant |
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predeceased the holder to whose death the disclaimer relates. |
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Sec. 240.053. DISCLAIMER OF INTEREST BY TRUSTEE. If a |
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trustee disclaims an interest in property that otherwise would have |
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become trust property, the interest does not become trust property. |
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Sec. 240.054. DISCLAIMER OF POWER OF APPOINTMENT OR OTHER |
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POWER NOT HELD IN FIDUCIARY CAPACITY. (a) If a holder disclaims a |
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power of appointment or other power not held in a fiduciary |
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capacity, this section applies. |
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(b) If the holder: |
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(1) has not exercised the power, the disclaimer takes |
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effect as of the time the instrument creating the power becomes |
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irrevocable; or |
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(2) has exercised the power and the disclaimer is of a |
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power other than a presently exercisable general power of |
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appointment, the disclaimer takes effect immediately after the last |
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exercise of the power. |
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(c) The instrument creating the power is construed as if the |
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power had expired when the disclaimer became effective. |
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Sec. 240.055. DISCLAIMER BY APPOINTEE, OBJECT, OR TAKER IN |
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DEFAULT OF EXERCISE OF POWER OF APPOINTMENT. (a) A disclaimer of an |
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interest in property by an appointee of a power of appointment takes |
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effect as of the time the instrument by which the holder exercises |
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the power becomes irrevocable. |
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(b) A disclaimer of an interest in property by an object or |
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taker in default of an exercise of a power of appointment takes |
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effect as of the time the instrument creating the power becomes |
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irrevocable. |
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Sec. 240.056. DISCLAIMER OF POWER HELD IN FIDUCIARY |
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CAPACITY. (a) If a person designated to serve or serving as a |
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fiduciary disclaims a power held or to be held in a fiduciary |
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capacity that has not been exercised, the disclaimer takes effect |
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as of the time the instrument creating the power becomes |
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irrevocable. |
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(b) If a person designated to serve or serving as a |
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fiduciary disclaims a power held or to be held in a fiduciary |
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capacity that has been exercised, the disclaimer takes effect |
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immediately after the last exercise of the power. |
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(c) A disclaimer subject to this section is effective as to |
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another person designated to serve or serving as a fiduciary if: |
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(1) the disclaimer provides that it is effective as to |
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another person designated to serve or serving as a fiduciary; and |
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(2) the person disclaiming has the authority to bind |
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the estate, trust, or other person for whom the person is acting. |
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Sec. 240.057. TAX QUALIFIED DISCLAIMER. Notwithstanding |
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any other provision of this chapter, if, as a result of a disclaimer |
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or transfer, the disclaimed or transferred interest is treated |
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under the Internal Revenue Code of 1986 or any successor law as |
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never having been transferred to the disclaimant, the disclaimer or |
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transfer is effective as a disclaimer under this chapter. |
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SUBCHAPTER C. DELIVERY OR FILING |
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Sec. 240.101. DELIVERY OR FILING GENERALLY. (a) Subject to |
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applicable requirements of this subchapter, a disclaimant may |
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deliver a disclaimer by personal delivery, first-class mail, |
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facsimile, e-mail, or any other method likely to result in the |
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disclaimer's receipt. |
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(b) If a disclaimer is mailed to the intended recipient by |
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certified mail, return receipt requested, at an address the |
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disclaimant in good faith believes is likely to result in the |
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disclaimer's receipt, delivery is considered to have occurred on |
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the date of mailing regardless of the date of receipt. |
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Sec. 240.102. DISCLAIMER OF INTEREST CREATED UNDER |
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INTESTATE SUCCESSION OR WILL. In the case of an interest created |
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under the law of intestate succession or an interest created by |
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will, other than an interest in a testamentary trust: |
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(1) a disclaimer must be delivered to the personal |
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representative of the decedent's estate; or |
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(2) if no personal representative is then serving, a |
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disclaimer must be filed in the official public records of the |
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county in which the decedent: |
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(A) was domiciled; or |
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(B) owned real property. |
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Sec. 240.103. DISCLAIMER OF INTEREST IN TESTAMENTARY TRUST. |
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In the case of an interest in a testamentary trust: |
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(1) a disclaimer must be delivered to the trustee then |
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serving; |
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(2) if no trustee is then serving, a disclaimer must be |
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delivered to the personal representative of the decedent's estate; |
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or |
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(3) if no trustee or personal representative is then |
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serving, a disclaimer must be filed in the official public records |
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of the county in which the decedent: |
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(A) was domiciled; or |
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(B) owned real property. |
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Sec. 240.104. DISCLAIMER OF INTEREST IN INTER VIVOS TRUST. |
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In the case of an interest in an inter vivos trust: |
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(1) a disclaimer must be delivered to the trustee then |
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serving, or, if no trustee is then serving, a disclaimer must be |
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filed: |
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(A) with a court having jurisdiction to enforce |
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the trust; or |
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(B) in the official public records of the county |
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in which: |
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(i) the situs of administration of the |
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trust is maintained; or |
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(ii) the settlor is domiciled or was |
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domiciled at the date of the settlor's death; or |
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(2) if a disclaimer is made before the time the |
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instrument creating the trust becomes irrevocable, a disclaimer |
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must be delivered to the settlor of a revocable trust or the |
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transferor of the interest. |
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Sec. 240.105. DISCLAIMER OF INTEREST CREATED BY BENEFICIARY |
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DESIGNATION. (a) In this section, "beneficiary designation" means |
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an instrument, other than an instrument creating a trust, naming |
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the beneficiary of: |
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(1) an annuity or insurance policy; |
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(2) an account with a designation for payment on |
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death; |
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(3) a security registered in beneficiary form; |
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(4) a pension, profit-sharing, retirement, or other |
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employment-related benefit plan; or |
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(5) any other nonprobate transfer at death. |
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(b) In the case of an interest created by a beneficiary |
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designation that is disclaimed before the designation becomes |
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irrevocable, the disclaimer must be delivered to the person making |
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the beneficiary designation. |
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(c) In the case of an interest created by a beneficiary |
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designation that is disclaimed after the designation becomes |
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irrevocable: |
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(1) a disclaimer of an interest in personal property |
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must be delivered to the person obligated to distribute the |
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interest; and |
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(2) a disclaimer of an interest in real property must |
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be recorded in the official public records of the county where the |
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real property that is the subject of the disclaimer is located. |
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Sec. 240.106. DISCLAIMER BY SURVIVING HOLDER OF |
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SURVIVORSHIP PROPERTY. In the case of a disclaimer by a surviving |
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holder of survivorship property, the disclaimer must be delivered |
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to the person to whom the disclaimed interest passes. |
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Sec. 240.107. DISCLAIMER OF CERTAIN POWERS OF APPOINTMENT. |
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In the case of a disclaimer by an object or taker in default of |
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exercise of a power of appointment at any time after the power was |
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created: |
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(1) the disclaimer must be delivered to the holder of |
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the power or to the fiduciary acting under the instrument that |
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created the power; or |
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(2) if no fiduciary is then serving, a disclaimer must |
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be filed: |
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(A) with a court having authority to appoint the |
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fiduciary; or |
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(B) in the official public records of the county |
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in which the creator of the power is domiciled or was domiciled at |
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the date of the creator's death. |
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Sec. 240.108. DISCLAIMER BY CERTAIN APPOINTEES. In the |
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case of a disclaimer by an appointee of a nonfiduciary power of |
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appointment: |
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(1) the disclaimer must be delivered to the holder, |
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the personal representative of the holder's estate, or the |
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fiduciary under the instrument that created the power; or |
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(2) if no fiduciary is then serving, the disclaimer |
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must be filed: |
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(A) with a court having authority to appoint the |
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fiduciary; or |
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(B) in the official public records of the county |
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in which the creator of the power is domiciled or was domiciled at |
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the date of the creator's death. |
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Sec. 240.109. DISCLAIMER BY CERTAIN FIDUCIARIES. In the |
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case of a disclaimer by a fiduciary of a power over a trust or |
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estate, the disclaimer must be delivered as provided by Section |
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240.102, 240.103, or 240.104 as if the power disclaimed were an |
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interest in property. |
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Sec. 240.110. DISCLAIMER OF POWER BY AGENT. In the case of |
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a disclaimer of a power by an agent, the disclaimer must be |
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delivered to the principal or the principal's representative. |
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Sec. 240.111. RECORDING OF DISCLAIMER. If an instrument |
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transferring an interest in or power over property subject to a |
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disclaimer is required or authorized by law to be filed, recorded, |
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or registered, the disclaimer may be filed, recorded, or registered |
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as that instrument. Except as otherwise provided by Section |
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240.105(c)(2), failure to file, record, or register the disclaimer |
|
does not affect the disclaimer's validity between the disclaimant |
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and persons to whom the property interest or power passes by reason |
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of the disclaimer. |
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SUBCHAPTER D. DISCLAIMER BARRED OR LIMITED |
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Sec. 240.151. WHEN DISCLAIMER BARRED OR LIMITED. (a) A |
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disclaimer is barred by a written waiver of the right to disclaim. |
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(b) A disclaimer of an interest in property is barred if any |
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of the following events occur before the disclaimer becomes |
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effective: |
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(1) the disclaimant accepts the interest sought to be |
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disclaimed; |
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(2) the disclaimant voluntarily assigns, conveys, |
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encumbers, pledges, or transfers the interest sought to be |
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disclaimed or contracts to do so; or |
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(3) the interest sought to be disclaimed is sold under |
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a judicial sale. |
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(c) A disclaimer, in whole or in part, of the future |
|
exercise of a power held in a fiduciary capacity is not barred by |
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the previous exercise of the power. |
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(d) A disclaimer, in whole or in part, of the future |
|
exercise of a power not held in a fiduciary capacity is not barred |
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by the previous exercise of the power unless the power is |
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exercisable in favor of the disclaimant. |
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(e) A disclaimer is barred or limited if provided by other |
|
law. |
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(f) A disclaimer of: |
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(1) a power over property that is barred by this |
|
section is ineffective; and |
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(2) an interest in property that is barred by this |
|
section takes effect as a transfer of the interest disclaimed to the |
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persons who would have taken the interest under Subchapter B had the |
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disclaimer not been barred. |
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(g) A disclaimer by a child support obligor is barred as to |
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disclaimed property that could be applied to satisfy the |
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disclaimant's child support obligations if those obligations have |
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been: |
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(1) administratively determined by the Title IV-D |
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agency as defined by Section 101.033, Family Code, in a Title IV-D |
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case as defined by Section 101.034, Family Code; or |
|
(2) confirmed and reduced to judgment as provided by |
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Section 157.263, Family Code. |
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(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 |
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any other remedy provided by law. |
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SECTION 2. The heading to Chapter 122, Estates Code, is |
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amended to read as follows: |
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CHAPTER 122. [DISCLAIMERS AND] ASSIGNMENTS |
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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 |
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read as follows: |
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Sec. 122.204. FAILURE TO COMPLY. Failure to comply with |
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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: |
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(1) Subchapters A, B, C, and D, Chapter 122, Estates |
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Code; |
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(2) the heading to Subchapter E, Chapter 122, Estates |
|
Code; |
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(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. |