How Can Someone “Disclaim” Their Inheritance From An Estate?

Although you typically hear stories in the news about people fighting over an inheritance from a deceased relative, what about the reverse? That is, what if someone is entitled to an inheritance but does not want it? Can they legally refuse?

The simple answer is “yes.” Nobody can be forced to accept a bequest or inheritance from an estate or trust. Indeed, there are a number of reasons why someone might want to refuse–or disclaim–an inheritance. For example, if a person is receiving government benefits such as Medicaid that are tied to income, a sudden inheritance might affect their eligibility. On the other end of the scale, very wealthy individuals might find that an inheritance affects their own tax and estate planning.

Florida Law on Disclaimers

Under Florida law, a person may disclaim a bequest “in whole or in part.” The disclaimer may also be “conditional or unconditional,” although it is presumed to be unconditional unless stated otherwise. Any disclaimer must be in writing to be effective and meet all of the the following requirements:

• the writing must declare that it is a “disclaimer”;
• the writing must “describe the interest or power disclaimed”;
• the writing must be signed by the person making the disclaimer;
• it must be witnessed in the same manner as required for a real estate deed in Florida; and
• The original signed disclaimer must be delivered to the personal representative of the estate (or the trustee of the trust).

Once a disclaimer is signed and delivered, the property essentially passes as if the person making the disclaimer had died before the decedent.

Can a Disclaimer Be Revoked Later?

Once an unconditional disclaimer is made–or the conditions of a conditional disclaimer have been met–it is irrevocable. In other words, the person cannot change their mind after the fact. A 2019 decision from the Florida Third District Court of Appeals, Lee v. Lee, offered a cautionary tale on this point. In that case, a daughter signed a disclaimer with respect to her late father’s estate. The disclaimer said it applied to “all estate assets,” without providing any more specific description.

The daughter later went to court and argued her disclaimer was invalid due to the lack of a specific description of the real property in the estate. Although a trial court accepted this argument, the Third District did not. It held that Florida law only required a legal description of real property when a disclaimer was recorded with the county clerk. This disclaimer was not recorded, however, so the “lack of a legal description does not otherwise affect its validity.”

Speak with a Florida Probate Attorney Today

If you are an interested party in an estate where a disclaimer might be an issue, it is important to seek out qualified legal advice from an experienced St. Petersburg probate litigation lawyer. Contact Legacy Protection Lawyers, LLP, today to schedule a consultation with a member of our staff.

Sources:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0739/Sections/0739.104.html

scholar.google.com/scholar_case?case=8480800054362415358