701.27(1)(a)
(a) "Beneficiary under a nontestamentary instrument" includes any person who receives or might receive property or an interest in property under the terms or legal effect of a nontestamentary instrument.
701.27(1)(b)
(b) "Nontestamentary instrument" means any instrument other than a will which effectively controls the disposition of property or an interest in property. This term includes, without limitation, an inter vivos instrument exercising a power of appointment whether created by will or by nontestamentary instrument, life insurance policies and annuity contracts, inter vivos trusts, conveyances, contracts and choses in action.
701.27(2)(a)(a)
In general. A person who is a beneficiary under a nontestamentary instrument, person succeeding to a disclaimed interest created by a nontestamentary instrument, donee of a power created by nontestamentary instrument, appointee under a power exercised by nontestamentary instrument or taker in default under a power created by nontestamentary instrument, may disclaim any property or interest in property, including contingent or future interests or the right to receive discretionary distributions, by delivering a written instrument of disclaimer under this section.
701.27(2)(b)1.1. Upon the death of a joint tenant that occurs on or after June 7, 1996, a surviving joint tenant may disclaim any property or interest in property that would otherwise accrue to him or her by right of survivorship and that is the subject of the joint tenancy. A surviving joint tenant may disclaim the entire interest if he or she fulfills the requirements under section
2518 of the internal revenue code.
701.27(2)(b)2.
2. Any property or interest in property or portion of property or interest in property that is disclaimed under
subd. 1. shall become an asset in the decedent's probate estate.
701.27(2)(bm)
(bm)
Survivorship marital property. Upon the death of a spouse, the surviving spouse may disclaim the decedent spouse's interest in survivorship marital property.
701.27(2)(c)
(c)
Partial disclaimer. Property may be disclaimed in whole or in part, except that a partial disclaimer of property passing by nontestamentary instrument or by the exercise of a power may not be made if partial disclaimer is expressly prohibited by the instrument or by the instrument exercising the power.
701.27(2)(d)
(d)
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.
701.27(2)(e)
(e)
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 interested persons if the personal representative or special administrator has not taken any action which would bar the right to disclaim under
sub. (7).
701.27(3)(a)2.
2. Declare the disclaimer and the extent of the disclaimer;
701.27(3)(b)
(b) Notwithstanding
par. (a), any disclaimer which meets the requirements of section
2518 of the internal revenue code, or any other provisions of federal law, constitutes an effective disclaimer under this section.
701.27(4)(a)(a)
Disclaiming a present interest. An instrument disclaiming a present interest shall be executed and delivered not later than 9 months after the effective date of the nontestamentary instrument, except that, for cause shown, the period may be extended by a court of competent jurisdiction, either within or after the 9-month period, for such additional time as the court deems just. The effective date of a revocable instrument or contract is the date on which the person having the power to revoke no longer has the power to revoke it or to transfer to himself, herself or another person the equitable ownership of the property or interest which is the subject of the disclaimer.
701.27(4)(b)
(b)
Disclaiming a future interest. An instrument disclaiming a future interest shall be executed and delivered not later than 9 months after the event that determines that the taker of the property or interest is finally ascertained and his or her interest indefeasibly fixed, except that, for cause shown, the period may be extended by a court of competent jurisdiction, either within or after the 9-month period, for such additional time as the court deems just.
701.27(4)(c)
(c)
Future right to income or profits. Notwithstanding
pars. (a) and
(b), an instrument disclaiming the future right to receive mandatory distributions of income or profits from any source may be executed and delivered at any time.
701.27(4)(d)
(d)
Persons under 21. Notwithstanding
pars. (a) and
(b), a person under 21 years of age may disclaim at any time not later than 9 months after the date on which the person attains 21 years of age.
701.27(4)(e)
(e)
Interests arising by disclaimer. Notwithstanding
pars. (a) and
(b), a person whose interest in property arises by disclaimer or by default of exercise of a power created by nontestamentary instrument may disclaim at any time not later than 9 months after the day on which the prior instrument of disclaimer is delivered, or the date of death of the donee of the power, as the case may be.
701.27(5)
(5) Delivery and filing of disclaimer. 701.27(5)(a)(a)
Delivery. In addition to any requirements imposed by the creating instrument, the instrument of disclaimer is effective only if, within the time specified under
sub. (4), it is delivered to and received by:
701.27(5)(a)1.
1. The transferor of the property or interest disclaimed, if living;
701.27(5)(a)2.
2. The personal representative or special administrator of the deceased transferor of the property; or
701.27(5)(b)
(b)
Delivery to trustee. If the trustee of any trust to which the interest or power relates does not receive the instrument of disclaimer under
par. (a), a copy shall also be delivered to the trustee.
701.27(5)(c)
(c)
Filing. When delivery is made to the personal representative or special administrator of a deceased transferor, a copy of the instrument of disclaimer shall be filed in the probate court having jurisdiction.
701.27(5)(d)
(d)
Failure to deliver or file. Failure to deliver a copy of the instrument of disclaimer to the trustee under
par. (b) or to file a copy in the probate court under
par. (c), within the time specified under
sub. (4), does not affect the validity of any disclaimer.
701.27(5)(e)
(e)
Recording. If real property or an interest in real property is disclaimed, a copy of the instrument of disclaimer may be recorded in the office of the register of deeds of the county in which the real estate is situated.
701.27(6)(a)(a)
Property not vested. The property or interest disclaimed under this section shall be deemed not to have been vested in, created in or transferred to the disclaimant.
701.27(6)(b)
(b)
Devolution. Unless the transferor of the property or donee of the power has otherwise provided, the property or interest disclaimed devolves as if the disclaimant had died before the effective date of the nontestamentary instrument; or if the disclaimant is an appointee under a power exercised by nontestamentary instrument, as if the disclaimant had died before the effective date of the exercise of the power; or if the disclaimant is a taker in default under a power created by nontestamentary instrument, as if the disclaimant had predeceased the donee of the power. A disclaimer relates back for all purposes to the effective date of the nontestamentary instrument; or if the disclaimant is an appointee under a power exercised by nontestamentary instrument, to the effective date of the exercise of the power; or if the disclaimant is a taker in default under a power created by nontestamentary instrument, to the last possible date for exercise of the power. A disclaimer of the future right to receive mandatory distributions of income or profits relates to the period stated in the disclaimer.
701.27(6)(c)
(c)
Future interest. Unless the instrument creating the future interest manifests a contrary intent, a future interest limited to take effect in possession or enjoyment after the termination of the interest which is disclaimed takes effect as if the disclaimant had died before the effective date of the nontestamentary instrument or, if the disclaimant is an appointee under a power exercised by nontestamentary instrument, as if the disclaimant had died before the effective date of the exercise of the power.
701.27(6)(d)
(d)
Nonapplicability. This subsection does not apply to a disclaimer under
sub. (2) (b), the effect of which is provided in
sub. (2) (b) 2.
701.27(7)(a)(a)
Method. A person's right to disclaim property or an interest in property is barred by the person's:
701.27(7)(a)1.
1. Assignment, conveyance, encumbrance, pledge or transfer of the property or interest or a contract therefor;
701.27(7)(a)3.
3. Acceptance of the property or interest or benefit of the property.
701.27(7)(b)
(b)
Effect upon successors in interest. The disclaimer or the written waiver of the right to disclaim is binding upon the disclaimant or person waiving and all persons claiming through or under him or her.
701.27(8)
(8) Nonexclusiveness of remedy. This section does not abridge the right of a person to waive, release, disclaim or renounce property or an interest in property under any other statute, the common law, or as provided in the creating instrument.
701.27(9)
(9) Applicability. This section applies to property or an interest in property existing or created on or after May 13, 1978 if the time for delivery of a disclaimer under this section has not expired.
701.27 Note
NOTE: 1991 Wis. Act 301, which affected this section, contains extensive legislative council notes.
