Disclaimer Reform and Udpia: The Disappointing Amendments of 2006
Estate Planning, Vol. 33, p. 24, December 2006
10 Pages Posted: 18 Nov 2006
This article assesses amendments made to the Uniform Disclaimer of Property Interests Act (UDPIA) in 2006. The article argues that these amendments - which are confined to a single provision of UDPIA concerning the devolution of a disclaimed interest in a remainder, or in a living trust - suffice to cure a glitch in UDPIA. Nevertheless, the solution lighted on by the drafters of the amendment is sub-optimal, in that it contradicts the probable intent of the benefactor in some instances and creates an asymmetry between the devolution of disclaimed property under a will and a living trust, even when the two are functionally indistinguishable.
This article also argues that the 2006 amendments are too limited. They leave untouched sections of UDPIA that call for reform, either because they are constitutionally suspect or because they endanger the effectiveness of disclaimers for tax purposes under the Internal Revenue Code. The article explores how UDPIA's transitional rule, its safe-harbor for disclaimers that satisfy the IRC, and its provision giving effect to both statutory and common law disclaimers raise either one or both of these potential objections. Finally, and perhaps most disturbingly, UDPIA's provision covering disclaimers of joint interests in property creates a loophole in fraudulent conveyance law that asset protection planners can exploit to protect wealthy individuals who face large malpractice or other liabilities.
The article urges the drafters of UDPIA to revisit these concerns and, if necessary, urges local drafting committees to address them independently. Since most of the states that have adopted UDPIA thus far have already tinkered with it in substantive ways, further tinkering will conform with the existing pattern of enactment of this Uniform Act.
JEL Classification: K11
Suggested Citation: Suggested Citation