854.13 Disclaimer of transfers at death.

637 words·~3 min read·/wi/chapter-854/854-13

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(1)Definitions. In this section:

(a)“Beneficiary under a governing instrument” includes any person who receives or might receive property under the terms or legal effect of a governing instrument.

(c)“Power of appointment” has the meaning given in s. 702.102

(15).

(2)Right to disclaim.

(a)In general.

1. In this paragraph, “person” includes a person who is unborn or whose identity is unascertained.

2. A person who is an heir, recipient of property, or beneficiary under a governing instrument, donee of a power of appointment created by a governing instrument, appointee under a power of appointment exercised by a governing instrument, taker in default under a power of appointment created by a governing instrument, or person succeeding to disclaimed property may disclaim any property, including contingent or future interests or the right to receive discretionary distributions, by delivering a written instrument of disclaimer under this section.

(b)Joint tenants. Upon the death of a joint tenant, a surviving joint tenant may disclaim any property that would otherwise accrue to him or her by right of survivorship and that is the subject of the joint tenancy by delivering a written instrument of disclaimer under this section.

(c)Survivorship marital property. Upon the death of a spouse, the surviving spouse may disclaim the decedent spouse’s interest in survivorship marital property.

(d)Partial disclaimer. Property may be disclaimed in whole or in part, except that a partial disclaimer of property passing by a governing instrument or by the exercise of a power of appointment may not be made if partial disclaimer is expressly prohibited by the governing instrument or by the instrument exercising the power of appointment.

(e)Spendthrift provision. The right to disclaim exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.

(f)Disclaimer by guardian or conservator. A guardian of the estate or a conservator appointed under ch. 54 or ch. 880 , 2003 stats., may disclaim on behalf of his or her ward, with court approval, if the ward is entitled to disclaim under this section.

(g)Disclaimer by agent under power of attorney. An agent under a power of attorney may disclaim on behalf of the person who granted the power of attorney if all of the following apply:

1. The person who granted the power of attorney is entitled to disclaim under this section.

2. The power of attorney specifically grants the power to disclaim.

(gm)Disclaimer by trustee. The trustee of a trust named as a recipient of property under a governing instrument may disclaim that property on behalf of the trust if the trust authorizes disclaimer by the trustee. If the trust does not authorize disclaimer by the trustee, the trustee’s power to disclaim is subject to the approval of the court.

(h)After death. A person’s right to disclaim survives the person’s death and may be exercised by the person’s personal representative or special administrator upon receiving approval from the court having jurisdiction of the person’s estate after hearing upon notice to all persons interested in the disclaimed property, if the personal representative or special administrator has not taken any action that would bar the right to disclaim under sub.

(11g).

(i)Disclaimer of inter vivos transfers. A person who is a recipient of property under an inter vivos governing instrument, as defined in s. 700.27

(c), may disclaim the property as provided in s. 700.27 .

(3)Instrument of disclaimer. The instrument of disclaimer shall do all of the following:

(a)Describe the property disclaimed.

(b)Declare the disclaimer and the extent of the disclaimer.

(c)Be signed by the disclaimant.

(d)Be delivered within the time and in the manner provided under subs.

(4)and

(5).