Terry L. Turnipseed | J.D., LL.M., CTFA

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Saying No Thanks: Qualified Disclaimers in Estate Planning

By Terry L. (T. L.) Turnipseed, J.D., LL.M., CTFA ·

A beneficiary can refuse an inheritance and let it pass to the next person in line as if the beneficiary had died first, with no gift tax. The rules are strict, the nine month clock is unforgiving, and the technique is more useful than most families realize.

Most estate planning is about getting assets to the people you choose. A qualified disclaimer runs the other way. It lets a beneficiary say no thanks to an inheritance or a gift, so that the property passes to the next person in line as if the beneficiary had died first. Done correctly, the person disclaiming is not treated as having made a gift at all.1 Done incorrectly, the beneficiary has made a taxable gift of the full amount. The difference is in the details.

The four requirements

A disclaimer is qualified for federal tax purposes only if it meets every one of the following.2

That last point has one important exception. A surviving spouse may disclaim and still receive the property through another route, such as a trust the Will creates for her benefit, as long as she does not retain a power to direct where it goes.3

State law supplies the rest. Florida, for example, has adopted the Uniform Disclaimer of Property Interests Act, which governs who may disclaim, how the disclaimer is signed and filed, and when a disclaimer is barred.4 The state rules and the federal rules are not identical, and a disclaimer has to satisfy both.

Where disclaimers earn their keep

The traps

The nine months run from the date of death, not from the date the beneficiary learns about the inheritance or the date the estate is opened. An executor who distributes early, or a beneficiary who takes a benefit while deciding, can lose the option. Disclaimers of joint property, of interests in trusts and of powers of appointment each have their own rules. And a disclaimer that works for federal purposes but fails a state formality, or the reverse, is worse than none at all.

The lesson for planning is simple. Build disclaimer flexibility into the documents in advance, name contingent beneficiaries deliberately, and tell the family that the first nine months after a death are a window, not a waiting room.

Notes

  1. IRC section 2518(a); Treas. Reg. section 25.2518-1(b). ↩
  2. IRC section 2518(b); Treas. Reg. section 25.2518-2. ↩
  3. Treas. Reg. section 25.2518-2(e)(2). ↩
  4. Fla. Stat. ch. 739 (Florida Uniform Disclaimer of Property Interests Act). ↩
  5. Rev. Rul. 2005-36, 2005-26 I.R.B. 1368. ↩

Terry L. (T. L.) Turnipseed, J.D., LL.M., CTFA, is a tax, trust and estate attorney in Fort Lauderdale, Florida, and Head of Estate and Tax Planning at Alta Trust Company. He is a former tenured professor of law at Syracuse University. Reach him at tl@turnipseed.law or on LinkedIn. This article is general information, not legal advice.

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