Perfecting Disclaimer Reform: Suggestions for a Revised Uniform Act

40 Pages Posted: 29 Mar 2004

See all articles by Adam J. Hirsch

Adam J. Hirsch

University of San Diego

Richard R. Gans

Fergeson, Skipper, Shaw, Keyser, Baron & Tirabassi, P.A.

Date Written: March 2004

Abstract

Persons who inherit property have the right to refuse (or "disclaim") their inheritances under state law. All fifty states now have disclaimer statutes regulating the right of disclaimer, although many of these statutes have grown antiquated. In 1999, NCCUSL promulgated the Uniform Disclaimer of Property Interests Act to promote disclaimer reform. Thus far, the Act has been adopted by eight jurisdictions, and in 2001 it was grafted verbatim into the Uniform Probate Code. We argue that the Act, although helpful in many respects, remains far from flawless: At a substantive level, the Act makes a number policy misjudgments. And at a technical level, the Act is peppered with glitches, ambiguities, gaps, and even constitutional uncertainties that are bound to produce litigation, if left uncorrected. In response, we propose a series of amendments to the official text of the Act designed both to improve upon its substance and to smooth out its technical wrinkles. We offer these amendments for consideration either by NCCUSL itself, or by drafting committees in the individual states that now or in the future contemplate enactment of this NCCUSL product. We also include extensive explanatory comments showing how and why each of our proposed amendments would ameliorate the Act and thereby advance the cause of disclaimer reform.

Suggested Citation

Hirsch, Adam Jay and Gans, Richard R., Perfecting Disclaimer Reform: Suggestions for a Revised Uniform Act (March 2004). FSU College of Law, Public Law Research Paper No. 112. Available at SSRN: https://ssrn.com/abstract=520542 or http://dx.doi.org/10.2139/ssrn.520542

Adam Jay Hirsch (Contact Author)

University of San Diego ( email )

5998 Alcala Park
San Diego, CA 92110
United States

Richard R. Gans

Fergeson, Skipper, Shaw, Keyser, Baron & Tirabassi, P.A. ( email )

1515 Ringling Boulevard, 10th Floor
Sarasota, FL 34236-6719
United States

HOME PAGE: http://fergesonskipper.lawoffice.com/profiles/2806692

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