NY Est Pow & Trusts L § 2-1.11 (2021)
2021 New York Laws EPT - Estates, Powers and Trusts Article 2 - Rules Governing Dispositions Subject to This Law Part 1 - Substantive Rules Governing Dispositions 2-1.11 - Renunciation of Property Interests

§ 2-1.11 Renunciation of property interests  (a)  A  renunciation  made  in  compliance with the provisions of this section shall not necessarily constitute a qualified  disclaimer  within the  meaning  of  section  2518 of the Internal Revenue Code of 1986, as amended, or for the purposes of the taxes imposed by article  twenty-six of the tax law.  (b) For purposes of this section:  (1) The term "disposition" shall include a disposition created under a will or trust agreement including, without limitation, the granting of a power   of  appointment,  a  disposition  created  by  the  exercise  or nonexercise of a power of appointment, a distributive share under 4-1.1, a transfer created by a trust account as defined in  7-5.1,  a  transfer created  by  a  life insurance or annuity contract, a transfer resulting from the creation of  a  joint  tenancy  or  tenancy  by  the  entirety, succession  to an interest occurring by operation of law on the death of a joint tenant or tenant by the entirety, a transfer under  an  employee benefit  plan  (including,  without limitation, any pension, retirement, death benefit, stock bonus or profit-sharing plan, system or  trust),  a transfer of a security to a beneficiary pursuant to part 4 of article 13 of  this  chapter,  any  other  disposition  or  transfer created by any testamentary or nontestamentary instrument, or by operation of law,  and any  of  the  foregoing created or increased by reason of a renunciation made by another person.  (2) The effective date of the disposition for purposes of this section shall be:   A. If the disposition is created by will, the exercise or  nonexercise of  a  testamentary  power  of  appointment,  a distribution pursuant to 4-1.1, the deposit of money in a trust account as defined in 7-5.1,  the registration  of  a  security  in beneficiary form pursuant to part 4 of article 13 of this chapter, a life insurance or  annuity  contract,  the death  of  a  joint  tenant  or  tenant  by the entirety, or an employee benefit plan, the date of death of the deceased testator, holder of  the power   of   appointment,  intestate,  creator  of  the  trust  account, registered owner of the security, insured, annuitant, other joint tenant or tenant by the entirety, or employee, as the case may be;   B. If the disposition is created by trust agreement, the exercise of a presently exercisable power of appointment,  the  creation  of  a  joint tenancy or tenancy by the entirety, or the renunciation of a disposition created  by  another,  the  date  as  of  which the transfer in trust is irrevocable and is a  completed  gift  for  federal  gift  tax  purposes (regardless of whether a gift tax is imposed on the completed gift), the date  of  the  exercise  of  the power of appointment, the creation of a joint tenancy or tenancy by the entirety, or renunciation, as  the  case may be; and   C.  If  the  disposition  is  created  by  any  other  testamentary or nontestamentary instrument, or by operation of  law,  the  date  of  the event by which the beneficiary is finally ascertained. Notwithstanding the foregoing, the effective date of a disposition which is of a future estate shall be the date on which it becomes an estate in possession.  (c)  (1)  Any beneficiary of a disposition may renounce all or part of such beneficiary's interest; provided, however, that a  surviving  joint tenant or tenant by the entirety may renounce the interest to which such tenant  succeeds,  by  operation  of law upon the death of another joint tenant or tenant by the entirety, to the extent such interest  could  be the  subject  of a qualified disclaimer under section 2518 of the United States Internal Revenue Code of 1986, as amended.  (2) Such renunciation shall be in writing, signed and acknowledged  by the  person renouncing, and shall be filed in the office of the clerk of the court having jurisdiction over the will or trust agreement governing the property of which the disposition would otherwise  be  made  or  the court  which issued letters of administration, or if there is no probate or administration, then in a surrogate's court provided by  law  as  the place of probate or administration of the decedent's estate, within nine months  after  the  effective date of the disposition. Such renunciation shall be accompanied by an affidavit of the renouncing party  that  such party  has not received and is not to receive any consideration in money or money's worth for such renunciation from a person  or  persons  whose interest  is to be accelerated, unless payment of such consideration has been authorized by the court. Notice of such renunciation,  which  shall include  a  copy  of  the renunciation, shall be served personally or in such manner as the court may direct upon the fiduciary directed  by  the will   or   trust   agreement  to  make  the  disposition  or  upon  the administrator or  such  other  person  who  was  directed  to  make  the disposition  or upon any other person having custody or possession of or legal title to the property, an interest in which  is  being  renounced, and  by  mail or in such manner as the court may direct upon all persons whose  interest  may  be  created  or  increased  by  reason   of   such renunciation.  The  time  to  file  and  serve  such renunciation may be extended, in  the  discretion  of  the  court,  on  a  petition  showing reasonable cause and on notice to such persons and in such manner as the court  may  direct.  The  time  limited  in  this section for filing and serving such renunciation is exclusive, and shall not  be  suspended  or otherwise  affected  by  any  other  provision of law; such renunciation shall be effective as of the date of such filing,  notwithstanding  that notice thereof may thereafter be required by the court.  (d) A renunciation may be made by:  (1)  The  guardian of the property of an infant, when so authorized by the court having jurisdiction of the estate of the infant.  (2) The committee of an incompetent when so authorized  by  the  court that appointed the committee.  (3)  The conservator of a conservatee, when so authorized by the court that appointed the conservator.  (4) A guardian  appointed  under  article  eighty-one  of  the  mental hygiene  law,  when  so  authorized  by  the  court  that  appointed the guardian.  (5) The personal representative of a decedent, provided, however, that the personal representative may seek authorization from the court having jurisdiction of the estate of the decedent.  (6) An attorney-in-fact, when so  authorized  under  a  duly  executed power  of  attorney,  provided,  however,  that  any  renunciation by an attorney-in-fact of a person under disability  shall  not  be  effective unless it is further authorized by the court with which the renunciation must  be  filed under subparagraph two of paragraph (c) of this section, and provided, further, that a renunciation by an attorney-in-fact  of  a person  not  under  disability  may be made without court authorization, unless the property which would have passed under said renunciation  is, by   reason   of  said  renunciation,  disposed  of  in  favor  of  such attorney-in-fact or the spouse or issue  of  such  attorney-in-fact,  in which  case  such  renunciation shall not be effective unless either (A) the instrument appointing such attorney-in-fact expressly  authorizes  a renunciation in favor of such attorney-in-fact or the spouse or issue of such  attorney-in-fact,  or (B) such renunciation has been authorized by the court with which the renunciation must be filed  under  subparagraph two of paragraph (c) of this section.  (e)  Unless the creator of the disposition has otherwise provided, the filing of a renunciation, as provided in  this  section,  has  the  same effect  with  respect to the renounced interest as though the renouncing person had predeceased the creator or the decedent or, if the  renounced interest is a future estate, as though the renouncing person had died at the  time  of  filing  or  just  prior  to  its  becoming  an  estate in possession, whichever is earlier in time, and shall have the  effect  of accelerating  the  possession and enjoyment of subsequent interests, but shall have no effect upon the vesting of a future estate  which  by  the terms  of  the disposition is limited upon a preceding estate other than the renounced interest. If, pursuant to the  preceding  sentence,  there would  occur  a  per  stirpes disposition of the renounced interest or a disposition or distribution of the renounced interest by representation, then solely for purposes of applying 1-2.14 or 1-2.16, as the  case  may be,  the  renouncing  person shall be treated as having died on the same date as, but immediately after, the  creator  or  decedent  or,  if  the renounced  interest  is a future estate, as having died on the same date as, but immediately after, its becoming an estate in possession  or,  if the  time  of  filing  is  earlier  in  time,  on  the same date as, but immediately after, such filing. Such renunciation is retroactive to  the creation  of  the  disposition.  A person who has a present and a future interest in property and renounces the present interest in whole  or  in part  shall  be deemed to have renounced the future interest to the same extent.  (f) A beneficiary may accept one disposition and renounce another, may renounce a disposition in  whole  or  in  part,  or  with  reference  to specific   amounts,   parts,   fractional   shares  or  assets  thereof. Notwithstanding the provisions of  paragraph  (e)  of  this  section,  a renunciation  by  a  surviving  spouse  of  a  decedent of a disposition created by said decedent shall not be deemed to  be  a  renunciation  by such  spouse  of all or any part of any other disposition to or in favor of such spouse, regardless of whether  the  property  which  would  have passed   under   said   renounced  disposition  is  by  reason  of  said renunciation disposed of to  or  in  favor  of  such  spouse.  Unless  a renouncing person has provided otherwise in his renunciation, the effect of  a  renunciation of a fractional part of a disposition is to renounce such fraction of all property to which the renouncing person is entitled under the disposition.  (g) A renunciation may not be made under this section with respect  to any  property  which  a  renouncing  person has accepted, except that an acceptance does not preclude a person from renouncing all or part of any property to which such  person  becomes  entitled  when  another  person renounces  after  such  acceptance.  For  purposes  of this paragraph, a person accepts an  interest  in  property  if  such  person  voluntarily transfers or encumbers, or contracts to transfer or encumber all or part of  such  interest,  or  accepts  delivery  or  payment of, or exercises control as beneficial owner over all or  part  thereof,  or  executes  a written  waiver  of  the  right  to  renounce,  or  otherwise  indicates acceptance of all or part of such interest.  A  written  waiver  of  the right to renounce shall be binding on the person waiving and all parties claiming by, through or under such person.  (h) A renunciation filed under this section is irrevocable.  (i) This section shall not abridge the right of any beneficiary or any other  person  to  assign,  convey,  release or renounce any property or interest therein arising under any other  section  of  this  chapter  or other statute or under common law.  (j) Except as specifically provided in the trust instrument, the will, any  other instrument creating the disposition, or in this section, this  section shall apply to each disposition the effective date of which  (as defined  in  this  section)  is  on  or after the effective date of this section, except that with  respect  to  the  renunciation  of  a  future interest  this  section  shall  apply as well to dispositions created or increased prior to the effective date of this section.