What It Means to Disclaim

Many of us dream about suddenly inheriting assets from a long-lost uncle. No doubt, some have experienced that new-found wealth and were overjoyed when it occurred. Sometimes, however, that wealth may not be desirable. Some clients have assets that exceed the amount they could spend in their lifetime, will have an estate tax issue, and additional assets only compound that. Others may prefer that the assets go elsewhere. This article examines the basics of disclaimers and how some situations require the more complex “double disclaimer.”

Internal Revenue Code (“Code”) Section 2518 describes the requirements necessary for a “qualified disclaimer.” If the disclaimer meets the statutory requirements, then the Code treats the disclaimant as having predeceased the decedent and imposes no gift tax on the transfer to the second beneficiary. This preserves the disclaimant’s Applicable Exclusion Amount (“AEA”) and the assets pass to the next named beneficiary or beneficiaries without additional tax liability. For the disclaimer to work; however, the disclaimant needs to follow the rules of Code Section 2518 precisely. A disclaimer needs to meet the following requirements pursuant to Code Section 2518:

  1. The refusal must be in writing,
  2. The refusal must be received by the transferor of the interest (or the representative or legal title holder) within 9 months of the later of the date on which the transfer creating the interest is made or the date the recipient attains age 21,
  3. The disclaimant must not have accepted any of the benefits of the property, and
  4. The interest must pass without direction by the disclaimant either to the decedent’s spouse or someone other than the disclaimant.

Nothing in the Code, the Treasury Regulations, nor any Internal Revenue Service guidance allows an extension on the 9-month deadline for a disclaimer. It matters not if the disclaimant were sick or had extenuating circumstances. That deadline is firm. Further, it doesn’t matter if an individual doesn’t know about their interest in the assets until well beyond the 9-month timeline. A lack of knowledge changes nothing. Let’s look at a quick example:

Granny’s Will leaves Blackare to Jose. The Will provides that if Jose predeceases Granny, Blackacre goes to Jose’s daughter, Lola. Blackacre has a value of $5 million. Jose has sufficient assets from his vast holdings and does not need  Blackacre. Jose has made several lifetime gifts and has already used his AEA. He wants Blackacre to go to Lola because she has always enjoyed vacationing there. If Jose accepts Blackacre, then gives it to Lola, that results in a taxable gift on $5 million resulting in a gift tax liability of $2 million. If Jose disclaims timely without accepting any benefits from Blackacre, then Blackacre will pass to Lola as though Jose predeceased Granny. Granny’s Will provides that Blackacre passes to Lola if Jose predeceased Granny. Allowing Blackacre to pass in this manner accomplishes Jose’s wishes and saves Jose $2 million.

While the above example is simple, that’s not always the case. If you want to consider a disclaimer, you need to map out how the property will pass after the disclaimer. The Estate Planning documents may complicate that process and the disclaimant cannot direct what happens if the Estate Plan varies from the disclaimant’s wishes. For example, above, if Jose preferred that Blackacre pass to his daughter, Gabriela, rather than to Lola, he could not disclaim and direct that the property pass to Gabriela. That would violate Code Section 2518. Instead, he would need to accept Blackacre and then gift it to Gabriela. He would incur the resulting gift tax of $2 million. In some complex situations, it may still be possible to achieve the desired result. Executing a disclaimer requires you to understand how the property will pass after the disclaimer. A double disclaimer may allow you to alter the course a bit. Let’s look at another example that highlights that principle:

Grandpa had a trust that left all his assets to his surviving spouse, Granny. Pursuant to the terms of Grandpa’s Trust, if Granny disclaimed, the property would be held in a Family or Bypass Trust for the benefit of Granny and their children, Lucia and Jose. At Granny’s death, the Trust Agreement directs distribution of the assets outright to Lucia and Jose. If Lucia or Jose predeceases Granny, the property would go to their descendants, if any, or to Grandpa’s descendants.

Granny decides she doesn’t want Blackacre and wants it to go to their children immediately without using any of her AEA. First, Granny needs to execute a qualified disclaimer of the property. That disclaimer sends Blackacre to the Bypass or Family Trust for her benefit and the benefit of Lucia and Jose. (Remember, even though Granny would benefit from the Bypass Trust, this meets the requirements of a qualified disclaimer because she is the decedent’s spouse.) Next, Granny would execute another qualified disclaimer, this time of her interest in the Bypass Trust. The second disclaimer treats Granny as having predeceased Grandpa. This allows Blackacre to pass directly to Lucia and Jose. In fact, if desired, the family could go one step further. Let’s say Granny only wanted Lucia to get Blackacre and Jose agreed to that plan. After Granny executed the first disclaimer sending Blackacre to the Bypass Trust and the second disclaimer of her interest in the Bypass Trust, Jose could disclaim his interest. Since Jose has no children, the terms of the trust would send Blackacre to Lucia. Remember, it’s imperative to chart the course of the disclaimed property to know where it will go.

Of course, if Granny wants to get the property just to Lucia, she’d have to rely on the expectation that Jose will disclaim after Granny does. Jose would be under no legal obligation to do so.

Disclaimers represent yet another way to achieve client goals. Sometimes they can be quite tricky and require thought to achieve the desired outcome. Sometimes more than one disclaimer might be necessary to accomplish the preferred result. Remember to chart the post-disclaimer course of the asset prior to disclaiming. Once you are confident that the disclaimed property will pass as intended, it’s imperative to follow Code Section 2518 exactly. Even a small misstep will invalidate the disclaimer and make the transfer a gift.