71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
Senate Bill 123
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Joint Interim Judiciary
Committee for Estate Planning section of Oregon State Bar)
CHAPTER ................
AN ACT
Relating to disclaimers of property interests; creating new
provisions; and repealing ORS 105.625, 105.627, 105.630,
105.632, 105.635, 105.637, 105.640, 112.650, 112.652, 112.655,
112.657, 112.660, 112.662, 112.665 and 112.667.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Short title. Sections 1 to 18 of this 2001 Act
may be cited as the Uniform Disclaimer of Property Interests
Act. + }
SECTION 2. { + Definitions. As used in sections 1 to 18 of
this 2001 Act:
(1) 'Disclaimant' means the person to whom a disclaimed
interest or power would have passed had the disclaimer not been
made.
(2) 'Disclaimed interest' means the interest that would have
passed to the disclaimant had the disclaimer not been made.
(3) 'Disclaimer' means the refusal to accept an interest in
property or a power over property.
(4) 'Fiduciary' means a personal representative, trustee, agent
acting under a power of attorney or other person authorized to
act as a fiduciary with respect to the property of another
person.
(5) 'Jointly held property' means property held in the name of
two or more persons under an arrangement pursuant to which:
(a) All holders have concurrent interests; and
(b) The last surviving holder is entitled to the whole of the
property.
(6) 'Person' means an individual, corporation, business trust,
estate, trust, partnership, limited liability company,
association, joint venture, government, governmental subdivision,
agency, public corporation or any other legal or commercial
entity.
(7) 'State' means a state of the United States, the District of
Columbia, Puerto Rico, the United States Virgin Islands or any
territory or insular possession subject to the jurisdiction of
the United States. The term includes an Indian tribe or band, or
Alaskan native village, recognized by federal law or formally
acknowledged by another state.
(8) 'Trust' means:
Enrolled Senate Bill 123 (SB 123-A) Page 1
(a) A charitable or noncharitable express trust, including any
additions made to the trust, whenever and however created; and
(b) A trust created pursuant to a statute, judgment or decree
that requires the trust to be administered in the same manner as
an express trust. + }
SECTION 3. { + Scope. Sections 1 to 18 of this 2001 Act apply
to disclaimers of any interest in or power over property without
regard to when the interest or power that is disclaimed was
created. + }
SECTION 4. { + Effect on other law. (1) Unless displaced by a
provision of sections 1 to 18 of this 2001 Act, the principles of
law and equity supplement sections 1 to 18 of this 2001 Act.
(2) Sections 1 to 18 of this 2001 Act do not limit any right of
a person to waive, release, disclaim or renounce an interest in
property, or power over property, under a law other than sections
1 to 18 of this 2001 Act. + }
SECTION 5. { + Power to disclaim; general requirements; when
irrevocable. (1) A person may disclaim, in whole or part, any
interest in property or any power over property, including a
power of appointment. A person may disclaim the interest or power
even if the person who created the interest or power imposed a
spendthrift provision or similar restriction on transfer or
imposed a restriction or limitation on the right to disclaim.
(2) Except to the extent that a fiduciary's right to disclaim
is expressly restricted or limited by another statute of this
state or by the instrument creating the fiduciary relationship, a
fiduciary may disclaim, in whole or part, any interest in
property or power over property, including a power of
appointment, without regard to whether the fiduciary is acting in
a personal or representative capacity. A fiduciary may disclaim
the interest or power even if the creator of the interest or
power imposed a spendthrift provision or similar restriction on
transfer or a restriction or limitation on the right to disclaim,
or an instrument other than the instrument that created the
fiduciary relationship imposed a restriction or limitation on the
right to disclaim.
(3) To be effective, a disclaimer must:
(a) Be in writing or otherwise recorded by inscription on a
tangible medium or by storage in an electronic or other medium in
a manner that allows the disclaimer to be retrieved in
perceivable form;
(b) Declare that the person disclaims the interest in the
property or in the power;
(c) Describe the interest in property or power over property
that is disclaimed;
(d) Be signed by the person making the disclaimer; and
(e) Be delivered or filed in the manner provided in section 12
of this 2001 Act.
(4) A partial disclaimer may be expressed as a fraction,
percentage, monetary amount, term of years, limitation of a power
or as any other interest or estate in the property.
(5) A disclaimer is irrevocable when the disclaimer is
delivered or filed pursuant to section 12 of this 2001 Act or
when the disclaimer becomes effective as provided in sections 6
to 11 of this 2001 Act, whichever occurs later.
(6) A disclaimer made under sections 1 to 18 of this 2001 Act
is not a transfer, assignment or release. + }
SECTION 6. { + Disclaimer of interest in property. (1) For the
purposes of this section:
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(a) 'Time of distribution' means the time when a disclaimed
interest would have taken effect through possession or enjoyment.
(b) 'Future interest' means an interest that takes effect
through possession or enjoyment, if at all, at a time later than
the time that the interest is created.
(2) Except for a disclaimer governed by section 7 or 8 of this
2001 Act, the following rules apply to a disclaimer of an
interest in property:
(a) The disclaimer takes effect when the instrument creating
the interest becomes irrevocable or, if the interest arises under
the law of intestate succession, when the decedent dies.
(b) The disclaimed interest passes according to any provision
in the instrument creating the interest providing for the
disposition of the specific interest in the event the interest is
disclaimed, or according to any provision in the instrument
creating the interest providing for the disposition of interests
in general in the event the interests created by the instrument
are disclaimed.
(c) If the instrument creating the interest does not contain a
provision described in subsection (2) of this section, the
following rules apply:
(A) If the disclaimant is an individual, the disclaimed
interest passes as if the disclaimant had died immediately before
the time of distribution. However, if by law or under the
instrument the descendants of the disclaimant would share in the
disclaimed interest by any method of representation had the
disclaimant died before the time of distribution, the disclaimed
interest passes only to the descendants of the disclaimant who
survive the time of distribution.
(B) If the disclaimant is not an individual, the disclaimed
interest passes as if the disclaimant did not exist.
(d) Upon the disclaimer of a preceding interest, a future
interest held by a person other than the disclaimant takes effect
as if the disclaimant had died or ceased to exist immediately
before the time of distribution, but a future interest held by
the disclaimant is not accelerated in possession or
enjoyment. + }
SECTION 7. { + Disclaimer of rights of survivorship in jointly
held property. (1) Upon the death of a holder of jointly held
property, a surviving holder may disclaim, in whole or part, the
greater of:
(a) A fractional share of the property determined by dividing
the number one by the number of joint holders alive immediately
before the death of the holder to whose death the disclaimer
relates; or
(b) All of the property except that part of the value of the
entire interest attributable to the contribution furnished by the
disclaimant.
(2) A disclaimer under subsection (1) of this section takes
effect upon the death of the holder of jointly held property to
whose death the disclaimer relates.
(3) An interest in jointly held property disclaimed by a
surviving holder of the property passes as if the disclaimant
predeceased the holder to whose death the disclaimer relates. + }
SECTION 8. { + Disclaimer of interest by trustee. If a trustee
disclaims an interest in property that otherwise would have
become trust property, the interest does not become trust
property. + }
SECTION 9. { + Disclaimer of power of appointment or other
power not held in fiduciary capacity. If a holder disclaims a
Enrolled Senate Bill 123 (SB 123-A) Page 3
power of appointment or other power not held in a fiduciary
capacity, the following rules apply:
(1) If the holder has not exercised the power, the disclaimer
takes effect as of the time the instrument creating the power
becomes irrevocable.
(2) If the holder has exercised the power and the disclaimer is
of a power other than a presently exercisable general power of
appointment, the disclaimer takes effect immediately after the
last exercise of the power.
(3) The instrument creating the power is construed as if the
power expired when the disclaimer became effective. + }
SECTION 10. { + Disclaimer by appointee, object or taker in
default of exercise of power of appointment. (1) A disclaimer of
an interest in property by an appointee of a power of appointment
takes effect as of the time the instrument by which the holder
exercises the power becomes irrevocable.
(2) A disclaimer of an interest in property by a person who is
an object of an exercise of a power of appointment, or by a
person who is a taker in default of an exercise of a power of
appointment, takes effect as of the time the instrument creating
the power becomes irrevocable. + }
SECTION 11. { + Disclaimer of power held in fiduciary
capacity. (1) If a fiduciary disclaims a power held in a
fiduciary capacity that has not been exercised, the disclaimer
takes effect as of the time the instrument creating the power
becomes irrevocable.
(2) If a fiduciary disclaims a power held in a fiduciary
capacity that has been exercised, the disclaimer takes effect
immediately after the last exercise of the power.
(3) A disclaimer under this section applies to another
fiduciary if the disclaimer so provides and the fiduciary
disclaiming has the authority to bind the estate, trust or other
person for whom the fiduciary is acting. + }
SECTION 12. { + Delivery or filing. (1) As used in this
section, ' beneficiary designation' means an instrument, other
than an instrument creating a trust, naming the beneficiary of:
(a) An annuity or insurance policy;
(b) An account with a designation for payment on death;
(c) A security registered in beneficiary form;
(d) A pension, profit-sharing, retirement or other
employment-related benefit plan; or
(e) Any other nonprobate transfer at death.
(2) Subject to subsections (3) to (12) of this section,
delivery of a disclaimer may be made by personal delivery, first
class mail or any other method likely to result in receipt of the
disclaimer.
(3) If the interest to be disclaimed is created under the law
of intestate succession or an interest created by will, other
than an interest in a testamentary trust:
(a) A disclaimer must be delivered to the personal
representative of the decedent's estate; or
(b) If a personal representative is not serving at the time the
disclaimer is made, the disclaimer must be filed with a court
having authority to appoint the personal representative.
(4) In the case of an interest in a testamentary trust:
(a) A disclaimer must be delivered to the trustee;
(b) If a trustee is not serving at the time the disclaimer is
made but a personal representative for the decedent's estate is
serving, the disclaimer must be delivered to the personal
representative; or
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(c) If neither a trustee nor a personal representative is
serving at the time the disclaimer is made, the disclaimer must
be filed with a court having authority to enforce the trust.
(5) In the case of an interest in an inter vivos trust:
(a) A disclaimer must be delivered to the trustee serving at
the time the disclaimer is made;
(b) If a trustee is not serving at the time the disclaimer is
made, the disclaimer must be filed with a court having authority
to enforce the trust; or
(c) If the disclaimer is made before the time the instrument
creating the trust becomes irrevocable, the disclaimer must be
delivered to the settlor of a revocable trust or the transferor
of the interest.
(6) In the case of an interest created by a beneficiary
designation made before the time the designation becomes
irrevocable, a disclaimer must be delivered to the person making
the beneficiary designation.
(7) In the case of an interest created by a beneficiary
designation made after the time the designation becomes
irrevocable, a disclaimer must be delivered to the person
obligated to distribute the interest.
(8) In the case of a disclaimer by a surviving holder of
jointly held property, the disclaimer must be delivered to the
person to whom the disclaimed interest passes.
(9) In the case of a disclaimer by a person who is an object of
an exercise of a power of appointment or a taker in default of an
exercise of a power of appointment at any time after the power
was created:
(a) The disclaimer must be delivered to the holder of the power
or to the fiduciary acting under the instrument that created the
power; or
(b) If a fiduciary is not serving at the time the disclaimer is
made, the disclaimer must be filed with a court having authority
to appoint the fiduciary.
(10) In the case of a disclaimer by an appointee of a
nonfiduciary power of appointment:
(a) The disclaimer must be delivered to the holder of the
power, the personal representative of the holder's estate or to
the fiduciary under the instrument that created the power; or
(b) If a fiduciary is not serving at the time the disclaimer is
made, the disclaimer must be filed with a court having authority
to appoint the fiduciary.
(11) In the case of a disclaimer by a fiduciary of a power over
a trust or estate, the disclaimer must be delivered as provided
in subsection (3), (4) or (5) of this section as if the power
disclaimed were an interest in property.
(12) In the case of a disclaimer of a power by an agent, the
disclaimer must be delivered to the principal or the principal's
representative. + }
SECTION 13. { + When disclaimer barred or limited. (1) A
disclaimer is barred by a written waiver of the right to
disclaim.
(2) A disclaimer of an interest in property is barred if any of
the following events occurs before the disclaimer becomes
effective:
(a) The disclaimant accepts the interest sought to be
disclaimed;
(b) The disclaimant voluntarily assigns, conveys, encumbers,
pledges or transfers the interest sought to be disclaimed or
contracts to do so; or
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(c) The interest sought to be disclaimed is sold pursuant to a
judicial sale.
(3) A disclaimer, in whole or part, of the future exercise of a
power held in a fiduciary capacity is not barred by the previous
exercise of the power.
(4) A disclaimer, in whole or part, of the future exercise of a
power not held in a fiduciary capacity is not barred by its
previous exercise unless the power is exercisable in favor of the
disclaimant.
(5) A disclaimer is barred or limited if so provided by a law
other than sections 1 to 18 of this 2001 Act.
(6) A disclaimer of a power over property that is barred under
this section is ineffective. A disclaimer of an interest in
property that is barred under this section takes effect as a
transfer of the interest disclaimed to the persons who would have
taken the interest under sections 1 to 18 of this 2001 Act had
the disclaimer not been barred. + }
SECTION 14. { + Tax qualified disclaimer. Notwithstanding any
other provision of sections 1 to 18 of this 2001 Act, if as a
result of a disclaimer or transfer the disclaimed or transferred
interest is treated pursuant to the provisions of the Internal
Revenue Code and the regulations promulgated under that code, as
in effect on the effective date of this 2001 Act, as never having
been transferred to the disclaimant, then the disclaimer or
transfer is effective as a disclaimer under sections 1 to 18 of
this 2001 Act. + }
SECTION 15. { + Recording of disclaimer. If an instrument
transferring an interest in property or a power over property
that is subject to a disclaimer is required or permitted by law
to be filed, recorded or registered, the disclaimer may be so
filed, recorded or registered. Failure to file, record or
register the disclaimer does not affect the validity of the
disclaimer as between the disclaimant and persons to whom the
property interest or power passes by reason of the
disclaimer. + }
SECTION 16. { + Application to existing relationships. Except
as otherwise provided in section 13 of this 2001 Act, an interest
in property or power over property existing on the effective date
of this 2001 Act may be disclaimed in the manner provided by
sections 1 to 18 of this 2001 Act after the effective date of
this 2001 Act unless the time for delivering or filing a
disclaimer had expired under law in effect immediately before the
effective date of this 2001 Act. + }
SECTION 17. { + Sections 1 to 18 of this 2001 Act do not allow
any person to disclaim an interest in property, including any
jointly held property, if the purpose or effect of the disclaimer
is to prevent recovery of money or property under ORS
411.620. + }
SECTION 18. { + Uniformity of application and construction. In
applying and construing sections 1 to 18 of this 2001 Act,
consideration must be given to the need to promote uniformity of
the law with respect to disclaimers among states that enact
versions of the Uniform Disclaimer of Property Interests Act. + }
SECTION 19. { + Repeals. ORS 105.625, 105.627, 105.630,
105.632, 105.635, 105.637, 105.640, 112.650, 112.652, 112.655,
112.657, 112.660, 112.662, 112.665 and 112.667 are repealed. + }
SECTION 20. { + Applicability. Sections 1 to 18 of this 2001
Act apply only to disclaimers made on or after the effective date
of this 2001 Act. + }
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SECTION 21. { + Captions. The section captions used in this
2001 Act are provided only for the convenience of the reader and
do not become part of the statutory law of this state or express
any legislative intent in the enactment of this 2001 Act. + }
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Passed by Senate February 14, 2001
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House May 11, 2001
...........................................................
Speaker of House
Enrolled Senate Bill 123 (SB 123-A) Page 7
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled Senate Bill 123 (SB 123-A) Page 8