A “disclaimer” is essentially a refusal of a gift or bequest, and you typically see them in the context of postmortem estate planning. For example, if a parent dies and leaves assets via a will to a child and the will names the grandchildren as the successor beneficiaries, a disclaimer of the bequest by the child would result in the assets passing to the next person entitled to the property, in this case the grandchildren.
Conceptually, disclaimers rest on two basic principles of property law: “a transfer is not complete until its acceptance by the recipient, and … no person can be forced to accept property against his will.” Jewett v. Commissioner, 455 U.S. 305, 323 (1982) (Blackmun, J., dissenting).
Florida Uniform Disclaimer of Property Interests Act:
In Florida, the law governing disclaimers is codified in the Florida Uniform Disclaimer of Property Interests Act, which is our heavily revised version of the Uniform Disclaimer of Property Interests Act.
In order for a Florida disclaimer to be valid, F.S. 739.104 tells us it must:
- be in writing,
- declare that the writing is a disclaimer,
- describe the interest or power disclaimed,
- be signed by the person making the disclaimer,
- be witnessed and acknowledged in the manner provided for by deeds of real estate, and
- be delivered in the manner provided in F.S. 739.301.
Case Study
Lee v. Lee, 263 So.3d 826 (Fla. 3d DCA January 23, 2019)
And if you want to record a disclaimer, thus providing constructive notice to anyone conducting a title search that might involve real property that has been disclaimed, F.S. 739.601 tells us the disclaimer must also contain a legal description of the real estate to which the disclaimer relates. But does that mean all disclaimers of real estate have to include legal descriptions? That’s the question the 3d DCA dealt with in this case.
Must all probate disclaimers of real estate contain legal descriptions? NO
In Lee v. Lee the decedent died intestate survived by three children. His estate was composed of two principal assets: (i) real property located in Miami, and (ii) settlement proceeds from a wrongful death claim. For reasons not disclosed in the opinion, one of the children disclaimed her interest in the estate. The disclaimer was witnessed by two persons and notarized, but it didn’t contain a legal description of the real estate.
The disclaiming child apparently had a change of heart, because she subsequently tried to undo her own disclaimer by arguing it wasn’t valid because it didn’t contain a legal description of the real estate being disclaimed. The trial court agreed. Not so fast, said the 3d DCA. Just because the statue gives you the option of recording a disclaimer if it contains a legal description, doesn’t mean it’s required. So saith the 3d DCA:
Section 739.601 provides additional requirements if the disclaimer is to be recorded, thus providing constructive notice to anyone conducting a title search that might involve real property that has been disclaimed. See § 739.601(1) – (2), Fla. Stat. (2014). This statute provides that a disclaimer “relating to real estate does not provide constructive notice to all persons unless the disclaimer contains a legal description of the real estate to which the disclaimer relates and unless the disclaimer is filed for recording in the office of the clerk of the court in the county … where the real estate is located.” § 739.601(1), Fla. Stat. (2014). The statute further provides as follows: “An effective disclaimer meeting the requirements of subsection (1) constitutes constructive notice to all persons from the time of filing. Failure to record the disclaimer does not affect its validity as between the disclaimant and persons to whom the property interest or power passes by reason of the disclaimer.” § 739.601(2), Fla. Stat. (2014) (emphasis added).
Hence, if the disclaimer is to be recorded to provide constructive notice, then the disclaimer must contain a legal description of the real property. It is clear, though, from subsection (2) of this statute, that a non-recorded disclaimer is valid as between the disclaimant and the person to whom the property passes by reason of the disclaimer, regardless of whether the disclaimer includes a description of the real property. If the legislature had intended for all disclaimers of real property, whether recorded or not, to contain a legal description, there would have been no need in section 739.601(1) to include a requirement of a legal description for disclaimers that would be recorded.
The instant disclaimer meets each statutory requirement found in section 739.104(3). While the absence of a legal description of the subject property renders the disclaimer incapable of recordation under section 739.601, the lack of a legal description does not otherwise affect its validity.