Probate & Trust Law Section Conference Manual ... - Minnesota CLE

donee. There cannot be a renunciation of a gift after one has accepted it.Acceptance is
manifested by an affirmative act which is consistent with ownership of the interest in property.
Reg. § 25.2518-2(d)(1).Once acceptance has occurred it cannot be rectified by a repayment or a
return of the property which the beneficiary would like to disclaim.
Merely taking delivery of an instrument of title, without more, does not constitute acceptance.
Id.Moreover, a disclaimant is not considered to have accepted property merely because under
applicable local law title to the property vests immediately in the disclaimant upon the death of a
decedent. Id.
D. The No Direction Test
Code § 2518(b)(4) requires that as a result of the disclaimer the interest in the disclaimed
property must pass without any direction on the part of the disclaimant to either the surviving
spouse of the decedent, or to a person other than the disclaimant. Code § 2518(b)(4) essentially
imposes two tests: (a) a no direction test, and (b) a no interest test.Under the “no direction” test
the disclaimant, whether or not she is the surviving spouse of the transferor, must not have the
power to direct to whom the property passes. The requirements of a qualified disclaimer under §
2518 are not satisfied if the disclaimant, either alone or in conjunction with another, directs the
redistribution or transfer of the property to another person (or has the power to direct the
redistribution or transfer of the property interest to another person) unless such power is limited
by an ascertainable standard. Reg. § 25.2518-2(e)(1).Under the “no interest” test, if the
disclaimant is someone other than the surviving spouse of the transferor the interest in the
disclaimed property must pass to someone other than the disclaimant. If the disclaimant is the
transferor’s surviving spouse the disclaimed property may pass to or for the spouse’s benefit.
E. Disclaimers of Separate and Severable Interests
Code § 2518(c)(1) provides that a disclaimer of an undivided portion of an interest in property
which meets the requirements of § 2518(b) is treated as a qualified disclaimer of such
proportionate interest.A disclaimer of an undivided portion of a separate interest in property
which meets the other requirements of a qualified disclaimer under § 2518(b) and the
corresponding regulations is also a qualified disclaimer. Reg. §25.2518-3(b). An undivided
portion of a disclaimant's separate interest in property must consist of a fraction or a percentage
of each and every substantial interest or right owned by the disclaimant in such property and
must extend over the entire term of the disclaimant's interest in such property and in other
property into which such property is converted. Id.
Likewise, a disclaimer of a specific pecuniary amount out of a pecuniary or nonpecuniary
bequest or gift which satisfies the other requirements of a qualified disclaimer under § 2518(b)
and the corresponding regulations is a qualified disclaimer provided that no income or other
benefit from the disclaimed amount inures to the benefit of the disclaimant either prior to or
subsequent to the disclaimer. Reg.§25.2518-3(c).
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