Perfecting Disclaimer Reform: Suggestions for a Revised Uniform Act

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.