The "Disclaimer." Just Say No?
Receiving an inheritance can be an emotional, exciting, and even life-changing event. But what if you don’t want to accept it? There are situations when accepting an inheritance may not be in your best interest, or not what you want for yourself. Our legal system provides us with a simple and straightforward way to say “no” to an inheritance: the disclaimer. We have the right to “disclaim” or turn down an inheritance (or a specific asset within an inheritance), as long as we follow the rules.
What is a Disclaimer?
The dictionary definition is a “formal refusal to accept an interest or estate.”1 In order for someone’s refusal to accept an interest to become a “qualified disclaimer” (meaning the IRS will not treat the asset as yours for tax purposes), it must meet the following requirements as paraphrased:
- The disclaimer is in writing (notarized) and delivered to the person controlling the estate (such as the executor or trustee) within nine months of the death or nine months after turning 21 if the inheritor is a minor.
- The person disclaiming has not accepted the interest or any of its benefits.
- The disclaimed interest passes without any direction by the person disclaiming, to either the decedent’s spouse or a person other than the person making the disclaimer.2
The writing must be very specific as to what you are disclaiming and follow all the rules (see 26 U.S. Code Section 2518). If you plan to disclaim but receive any part of the inherited interest, even briefly, it will be considered your asset.
When you disclaim an inheritance, you cannot stipulate where the asset or interest goes. The interest will pass on to the next heir according to the will, trust, beneficiary designation or intestate succession laws as though you did not exist.