15-2-801. RENUNCIATION.

(1) (a) A person or the representative of an incapacitated or unascertained person who is an heir, devisee, person succeeding to a renounced interest, donee, beneficiary under a testamentary or nontestamentary instrument, donee of a power of appointment, grantee, surviving joint owner or surviving joint tenant, beneficiary of an insurance contract, person designated to take pursuant to a power of appointment exercised by a testamentary or nontestamentary instrument, or otherwise the recipient of any benefit under a testamentary or nontestamentary instrument, may renounce in whole or in part, powers, future interests, specific parts, fractional shares or assets thereof by filing a written instrument within the time and at the place hereinafter provided.

(b) The instrument shall:

(i) Describe the property or interest renounced;

(ii) Be signed by the person renouncing; and

(iii) Declare the renunciation and the extent thereof.

(c) The appropriate court may direct or permit a trustee under a testamentary or nontestamentary instrument to renounce or to deviate from any power of administration, management or allocation of benefit upon finding that exercise of such power may defeat or impair the accomplishment of the purposes of the trust whether by the imposition of tax or the allocation of beneficial interest inconsistent with such purposes. Such authority shall be exercised after hearing and upon notice to all known persons beneficially interested in such trust or estate, in the manner pursuant to part 4, chapter 1, title 15, Idaho Code.

(2) Except as provided in subsection (9) of [the] this section, the writing specified in subsection (1) of this section must be filed within nine (9) months after the transfer or the death of the decedent, or donee of the power, whichever is the later, or, if the taker of the property is not then finally ascertained, not later than nine (9) months after the event that determines that the taker of the property or interest is finally ascertained or his interest indefeasibly vested. The writing must be filed in the court of the county where proceedings concerning the decedent’s estate are pending, or where they would be pending if commenced. If an interest in real estate is renounced, a copy of the writing may also be recorded in the office of the recorder in the county in which said real estate lies. A copy of the writing also shall be delivered in person or mailed by registered or certified mail to the personal representative of the decedent, the trustee of any trust in which the interest renounced exists, and no such personal representative, trustee or person shall be liable for any otherwise proper distribution or other disposition made without actual notice of the renunciation.

(3) Unless the decedent or donee of the power has otherwise indicated, the property or interest renounced passes as if the person renouncing had predeceased the decedent, or if the person renouncing is designated to take under a power of appointment as if the person renouncing had predeceased the donee of the power. A future interest that takes effect in possession or enjoyment after the termination of the estate or interest renounced takes effect as if the person renouncing had predeceased the decedent or the donee of the power. In every case the renunciation relates back for all purposes to the date of death of the decedent or the donee, as the case may be.

(4) The right to renounce property or an interest therein is barred by:

(a) Assignment, conveyance, encumbrance, pledge or transfer of property therein or any contract therefor;

(b) Written waiver of the right to renounce; or

(c) Sale or other disposition of property pursuant to judicial process, made before the renunciation is effective.

(5) The right to renounce granted by this section exists irrespective of any limitation on the interest of the person renouncing in the nature of a spendthrift provision or similar restriction.

(6) The renunciation or the written waiver of the right to renounce is binding upon the person renouncing or person waiving and all persons claiming through or under him.

(7) This section does not abridge the right of any person to assign, convey, release or renounce any property or an interest therein arising under any other statute.

(8) In clarification and amplification of subsection (1)(a) of this section, and to make clear the existing terms thereof, a renunciation may be made by an agent appointed under a power of attorney, by a conservator or guardian on behalf of an incapacitated person, or by the personal representative or administrator of a deceased person. The ability to renounce on behalf of the person does not need to be specifically set forth in a power of attorney if the power is general in nature.

(9) The due date for filing a timely disclaimer under subsection (2) of this section, where the decedent died after December 31, 2009, but before December 17, 2010, shall be not earlier than September 19, 2011.

History:

[15-2-801, added 1978, ch. 173, sec. 2, p. 395; am. 2000, ch. 182, sec. 1, p. 451; am. 2011, ch. 106, sec. 1, p. 271.]