ESTATES CODE


TITLE 2. ESTATES OF DECEDENTS; DURABLE POWERS OF ATTORNEY


SUBTITLE C. PASSAGE OF TITLE AND DISTRIBUTION OF DECEDENTS' PROPERTY IN GENERAL


CHAPTER 122. DISCLAIMERS AND ASSIGNMENTS


SUBCHAPTER A. GENERAL PROVISIONS RELATING TO DISCLAIMER


Sec. 122.001. DEFINITIONS. In this chapter, other than Subchapter E:

(1) "Beneficiary" includes a person who would have been entitled, if the person had not made a disclaimer, to receive property as a result of the death of another person:

(A) by inheritance;

(B) under a will;

(C) by an agreement between spouses for community property with a right of survivorship;

(D) by a joint tenancy with a right of survivorship;

(E) by a survivorship agreement, account, or interest in which the interest of the decedent passes to a surviving beneficiary;

(F) by an insurance, annuity, endowment, employment, deferred compensation, or other contract or arrangement; or

(G) under a pension, profit sharing, thrift, stock bonus, life insurance, survivor income, incentive, or other plan or program providing retirement, welfare, or fringe benefits with respect to an employee or a self-employed individual.

(2) "Disclaimer" includes renunciation.

(3) "Property" includes all legal and equitable interests, powers, and property, present or future, vested or contingent, and beneficial or burdensome, in whole or in part.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 122.002. WHO MAY DISCLAIM. (a) A person who may be entitled to receive property as a beneficiary who on or after September 1, 1977, intends to irrevocably disclaim all or any part of the property shall evidence the disclaimer as provided by this chapter.

(b) Subject to Subsection (c), the legally authorized representative of a person who may be entitled to receive property as a beneficiary who on or after September 1, 1977, intends to irrevocably disclaim all or any part of the property on the beneficiary's behalf shall evidence the disclaimer as provided by this chapter.

(c) A disclaimer made by a legally authorized representative described by Subsection (d)(1), (2), or (3), other than an independent executor, must be made with prior court approval of the court that has or would have jurisdiction over the legally authorized representative. A disclaimer made by an independent executor on behalf of a decedent may be made without prior court approval.

(d) In this section, "legally authorized representative" means:

(1) a guardian if the person entitled to receive the property as a beneficiary is an incapacitated person;

(2) a guardian ad litem if the person entitled to receive the property as a beneficiary is an unborn or unascertained person;

(3) a personal representative, including an independent executor, if the person entitled to receive the property as a beneficiary is a decedent; or

(4) an attorney in fact or agent appointed under a durable power of attorney authorizing disclaimers if the person entitled to receive the property as a beneficiary executed the power of attorney as a principal.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 122.003. EFFECTIVE DATE; CREDITORS' CLAIMS. (a) A disclaimer evidenced as provided by this chapter is effective for all purposes as of the date of the decedent's death.

(b) Property disclaimed in accordance with this chapter is not subject to the claims of a creditor of the disclaimant.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 122.004. DISCLAIMER IRREVOCABLE. A disclaimer that is filed and served as provided by this chapter is irrevocable.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 122.005. POWER TO PROVIDE METHOD OF DISCLAIMER. A will, insurance policy, employee benefit agreement, or other instrument may provide for the making of a disclaimer by a beneficiary of an interest receivable under that instrument and for the disposition of disclaimed property in a manner different than provided by this chapter.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

SUBCHAPTER B. FORM, FILING, AND NOTICE OF DISCLAIMER


Sec. 122.051. FORM AND CONTENTS. (a) A disclaimer of property receivable by a beneficiary must be evidenced by written memorandum acknowledged before:

(1) a notary public; or

(2) another person authorized to take acknowledgments of conveyances of real estate.

(b) A disclaimer of property receivable by a beneficiary must include a statement regarding whether the beneficiary is a child support obligor described by Section 122.107.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 689 (H.B. 2621), Sec. 1, eff. January 1, 2014.

Sec. 122.052. FILING IN PROBATE COURT. Except as provided by Sections 122.053 and 122.054, the written memorandum of disclaimer must be filed in the probate court in which:

(1) the decedent's will has been probated;

(2) proceedings have commenced for the administration of the decedent's estate; or

(3) an application has been filed for probate of the decedent's will or administration of the decedent's estate.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 122.053. FILING IN COUNTY OF DECEDENT'S RESIDENCE. The written memorandum of disclaimer must be filed with the county clerk of the county of the decedent's residence on the date of the decedent's death if:

(1) the administration of the decedent's estate is closed;

(2) one year has expired since the date letters testamentary were issued in an independent administration;

(3) a will of the decedent has not been probated or filed for probate;

(4) administration of the decedent's estate has not commenced; or

(5) an application for administration of the decedent's estate has not been filed.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 122.054. NONRESIDENT DECEDENT. If the decedent is not a resident of this state on the date of the decedent's death and the disclaimer is of real property that is located in this state, the written memorandum of disclaimer must be:

(1) filed with the county clerk of the county in which the real property is located; and

(2) recorded by the county clerk in the deed records of that county.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 122.055. FILING DEADLINE. (a) Except as provided by Subsection (c), a written memorandum of disclaimer of a present interest must be filed not later than nine months after the date of the decedent's death.

(b) Except as provided by Subsection (c), a written memorandum of disclaimer of a future interest may be filed not later than nine months after the date of the event determining that the taker of the property or interest is finally ascertained and the taker's interest is indefeasibly vested.

(c) If the beneficiary is a charitable organization or a governmental agency of the state, a written memorandum of disclaimer of a present or future interest must be filed not later than the later of:

(1) the first anniversary of the date the beneficiary receives the notice required by Subchapter A, Chapter 308; or

(2) the expiration of the six-month period following the date the personal representative files:

(A) the inventory, appraisement, and list of claims due or owing to the estate; or

(B) the affidavit in lieu of the inventory, appraisement, and list of claims.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 1338 (S.B. 1198), Sec. 2.10, eff. January 1, 2014.

Sec. 122.056. NOTICE. (a) Except as provided by Subsection (b), a copy of the written memorandum of disclaimer shall be delivered in person to, or mailed by registered or certified mail to and received by, the legal representative of the transferor of the interest or the holder of legal title to the property to which the disclaimer relates not later than nine months after:

(1) the date of the decedent's death; or

(2) if the interest is a future interest, the date the person who will receive the property or interest is finally ascertained and the person's interest is indefeasibly vested.

(b) If the beneficiary is a charitable organization or a governmental agency of this state, notice of a disclaimer required by Subsection (a) must be filed not later than the later of:

(1) the first anniversary of the date the beneficiary receives the notice required by Subchapter A, Chapter 308; or

(2) the expiration of the six-month period following the date the personal representative files:

(A) the inventory, appraisement, and list of claims due or owing to the estate; or

(B) the affidavit in lieu of the inventory, appraisement, and list of claims.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 1338 (S.B. 1198), Sec. 2.11, eff. January 1, 2014.

SUBCHAPTER C. EFFECT OF DISCLAIMER


Sec. 122.101. EFFECT. Unless the decedent's will provides otherwise:

(1) property subject to a disclaimer passes as if the person disclaiming or on whose behalf a disclaimer is made had predeceased the decedent; and

(2) a future interest that would otherwise take effect in possession or enjoyment after the termination of the estate or interest that is disclaimed takes effect as if the disclaiming beneficiary had predeceased the decedent.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 122.102. INEFFECTIVE DISCLAIMER. (a) Except as provided by Subsection (b), a disclaimer that does not comply with this chapter is ineffective.

(b) A disclaimer otherwise ineffective under Subsection (a) is effective as an assignment of the disclaimed property to those who would have received the property had the person attempting the disclaimer died before the decedent.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 122.103. SUBSEQUENT DISCLAIMER. This chapter does not prevent a person who is entitled to property as the result of a disclaimer from subsequently disclaiming the property.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 122.104. DISCLAIMER AFTER ACCEPTANCE. A disclaimer is not effective if the person making the disclaimer has previously accepted the property by taking possession or exercising dominion and control of the property as a beneficiary.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 122.105. INTEREST IN TRUST PROPERTY. A beneficiary who accepts an interest in a trust is not considered to have a direct or indirect interest in trust property that relates to a licensed or permitted business and over which the beneficiary exercises no control.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 122.106. INTEREST IN SECURITIES. Direct or indirect beneficial ownership of not more than five percent of any class of equity securities that is registered under the Securities Exchange Act of 1934 (15 U.S.C. Section 78a et seq.) is not considered an ownership interest in the business of the issuer of the securities within the meaning of any statute, pursuant thereto.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 122.107. ATTEMPTED DISCLAIMERS BY CERTAIN CHILD SUPPORT OBLIGORS INEFFECTIVE. (a) A disclaimer made by a beneficiary who is a child support obligor of estate property that could be applied to satisfy the beneficiary's child support obligation is not effective if the beneficiary owes child support arrearages that 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.

(b) After distribution of estate property to a beneficiary described by Subsection (a), the child support obligee to whom the child support arrearages are owed may enforce the child support obligation by a lien or by any other remedy provided by law.

Added by Acts 2013, 83rd Leg., R.S., Ch. 689 (H.B. 2621), Sec. 2, eff. January 1, 2014.

SUBCHAPTER D. PARTIAL DISCLAIMER


Sec. 122.151. PARTIAL DISCLAIMER. A person who may be entitled to receive property as a beneficiary may wholly or partly disclaim the property, including:

(1) specific powers of invasion;

(2) powers of appointment; and

(3) fee estate in favor of life estates.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 122.152. EFFECT OF PARTIAL DISCLAIMER. A partial disclaimer in accordance with this chapter is effective whether the property disclaimed constitutes a portion of a single, aggregate gift or constitutes part or all of a separate, independent gift, except that:

(1) a partial disclaimer is effective only with respect to property expressly described or referred to by category in the disclaimer; and

(2) a partial disclaimer of property subject to a burdensome interest created by the decedent's will is not effective unless the property constitutes a gift separate and distinct from undisclaimed gifts.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 122.153. PARTIAL DISCLAIMER BY SPOUSE. A disclaimer by the decedent's surviving spouse of a transfer by the decedent is not a disclaimer by the surviving spouse of all or any part of any other transfer from the decedent to or for the benefit of the surviving spouse, regardless of whether the property or interest that would have passed under the disclaimed transfer passes because of the disclaimer to or for the benefit of the surviving spouse by the other transfer.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

SUBCHAPTER E. ASSIGNMENT OF INTEREST


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 this chapter may assign the property or interest in property to any person.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 122.202. FILING OF ASSIGNMENT. An assignment may, at the request of the assignor, be filed as provided for the filing of a disclaimer under Subchapter B.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 122.203. NOTICE. Notice of the filing of an assignment as provided by Section 122.202 must be served as required by Section 122.056 for notice of a disclaimer.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 122.204. FAILURE TO COMPLY. Failure to comply with Subchapters A, B, C, and D does not affect an assignment.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 122.205. GIFT. An assignment under this subchapter is a gift to the assignee and is not a disclaimer under Subchapters A, B, C, and D.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

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 subchapter.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.