Disclaimer and Renunciation of Interest (Qualified Disclaimer) — Delaware

TIMING — IRC § 2518 (9-MONTH DEADLINE): To qualify as a federal "qualified disclaimer," this signed writing must be received by the proper recipient by the nine-month date measured from the later of the transfer creating this interest or the disclaimant's 21st birthday (subject to the limited federal mailing and weekend/holiday rules in Treas. Reg. § 25.2518-2(c)(2)), with no acceptance of the interest or its benefits. Delaware's disclaimer statute requires an effective writing and delivery under 12 Del. C. §§ 605 and 612; its § 601 is only the short-title provision. The nine-month receipt deadline stated here is for federal tax qualification under 26 U.S.C. § 2518. Verify the deadline with counsel before signing.

DISCLAIMER AND RENUNCIATION OF INTEREST (QUALIFIED DISCLAIMER)

STATE OF DELAWARE

TABLE OF CONTENTS

1. Disclaimant Information
2. Identification of the Transfer and Interest Disclaimed
3. Statutory Authority
4. The Disclaimer
5. Qualified-Disclaimer Representations
6. Effect and Passing of the Disclaimed Interest
7. Irrevocability and Binding Effect
8. Delivery, Filing, and Recording
9. Signature, Acknowledgment, and Notarization
10. Disclaimant's Factual Confirmation
11. Certificate of Delivery / Service
12. Attachments Checklist

1. DISCLAIMANT INFORMATION

The undersigned (the "Disclaimant") is a person to whom a disclaimed interest in property would have passed had the disclaimer not been made, under 12 Del. C. § 605, namely a(n): ☐ heir ☐ next of kin ☐ devisee ☐ legatee ☐ grantee ☐ donee ☐ surviving joint tenant ☐ beneficiary under a testamentary or nontestamentary instrument or contract ☐ appointee under a power of appointment ☐ other: [____________________].

2. IDENTIFICATION OF THE TRANSFER AND INTEREST DISCLAIMED

Source of the interest (check all that apply):
☐ Last Will and Testament of the Decedent
☐ Intestate succession (12 Del. C. ch. 5)
☐ Revocable, inter vivos, or testamentary trust
☐ Beneficiary designation (life insurance, retirement plan, annuity, POD/TOD account, or security registered in beneficiary form)
☐ Joint tenancy with right of survivorship / tenancy by the entirety
☐ Power of appointment
☐ Other: [________________________________]

Extent of the disclaimer:
☐ Full disclaimer — the Disclaimant disclaims the entire interest described above.
☐ Partial disclaimer — the Disclaimant disclaims only the following fractional, percentage, term-of-years, or pecuniary portion (as permitted by 12 Del. C. § 605(d)): [____________________] (e.g., an undivided ____% interest, or the sum of $[____________]).

For federal qualified-disclaimer treatment, an undivided fraction must cover the same fraction of every substantial right for the full term. A disclaimed pecuniary amount and its income must be segregated, with no benefit to the disclaimant. A term-of-years or specific-asset option needs a separate federal qualification review (26 C.F.R. § 25.2518-3).

Legal description of any real property disclaimed (or see attached Exhibit A): [________________________________]

3. STATUTORY AUTHORITY

This Disclaimer is made under the Delaware Disclaimer Act, 12 Del. C. ch. 6 (§§ 601 et seq.), and is intended to constitute a qualified disclaimer under 26 U.S.C. § 2518 and Treas. Reg. § 25.2518-2.

• 12 Del. C. § 605 permits a person to disclaim an interest or power, including despite a spendthrift or similar restriction, and requires a signed writing describing the disclaimer and delivery under § 612. Delaware Chapter 6 does not impose the federal qualified-disclaimer nine-month deadline.
• 12 Del. C. § 605 requires that the disclaimer (1) be in a writing; (2) declare the disclaimer and the extent thereof; (3) describe the interest or power disclaimed; (4) be signed by the Disclaimant (or by another at the Disclaimant's direction before two competent witnesses); and (5) be delivered in the manner provided in § 612.
• 12 Del. C. § 606 governs the effect of the disclaimer and the passing of the disclaimed interest.

4. THE DISCLAIMER

The Disclaimant, intending to be legally bound, hereby IRREVOCABLY and UNQUALIFIEDLY DISCLAIMS and RENOUNCES all (or, where a partial disclaimer is elected in Section 2, the stated fractional, percentage, term-of-years, or pecuniary part of all) right, title, claim, and interest of every kind — whether vested or contingent, present or future, legal or equitable — in and to the property and interest described in Section 2 above.

This Disclaimer is made freely, voluntarily, and with full knowledge of its legal and tax consequences.

5. QUALIFIED-DISCLAIMER REPRESENTATIONS

The Disclaimant represents and certifies that:

☐ This Disclaimer is in writing and signed by the Disclaimant (or the Disclaimant's legal representative), as required by 12 Del. C. § 605 and Treas. Reg. § 25.2518-2(b).

☐ This Disclaimer is being received within nine (9) months after the later of (a) the date of the transfer creating the interest or (b) the date the Disclaimant attained age 21, as required for federal tax qualification by 26 U.S.C. § 2518(b)(2); delivery must also comply with 12 Del. C. § 612.

☐ The Disclaimant has NOT accepted the disclaimed interest or any of its benefits, and has not assigned, conveyed, encumbered, pledged, transferred, or contracted to transfer the interest (Treas. Reg. § 25.2518-2(d)).

☐ The disclaimed interest passes without any direction on the part of the Disclaimant (26 U.S.C. § 2518(b)(4); Treas. Reg. § 25.2518-2(e)).

☐ As a result of this Disclaimer, the interest passes as if the Disclaimant had died immediately before the time of distribution (or, for an intestate interest, as of the intestate's death), as provided by 12 Del. C. § 606.

☐ This Disclaimer is intended as a qualified disclaimer under 26 U.S.C. § 2518 for federal transfer-tax purposes.

6. EFFECT AND PASSING OF THE DISCLAIMED INTEREST

Under 12 Del. C. § 606, unless the instrument creating the interest provides otherwise, the disclaimed interest passes as if the Disclaimant had died immediately before the time of distribution; if the disclaimed interest arose under the law of intestate succession, the disclaimer takes effect as of the time of the intestate's death. A future interest held by a person other than the Disclaimant takes effect as if the Disclaimant had died or ceased to exist immediately before the time of distribution. The disclaimer relates back to the time the instrument creating the interest became irrevocable, or to the determinative event, as applicable.

The Disclaimant does not direct to whom the disclaimed interest passes; it passes solely by operation of the governing instrument and Delaware law.

7. IRREVOCABILITY AND BINDING EFFECT

Under 12 Del. C. § 605(e), this Disclaimer becomes irrevocable at the later of its delivery under § 612 and its effective time under §§ 606–611. Once irrevocable, it may not be withdrawn or rescinded. The Disclaimant intends it to bind persons claiming through or under the Disclaimant.

8. DELIVERY, FILING, AND RECORDING

Pursuant to 12 Del. C. § 612, the Disclaimant shall (check all that apply):

☐ For an interest created by will or intestacy, other than a testamentary trust interest: deliver this Disclaimer to the personal representative, if one is then serving, and also to the court in the county where estate administration has been or could be commenced (12 Del. C. § 612(b), (m)).

☐ For an interest in a testamentary trust: deliver this Disclaimer to the trustee then serving, or to the personal representative if no trustee is serving, and also to the court in the county where estate administration has been or could be commenced (12 Del. C. § 612(c), (m)).

☐ For an interest in an inter vivos trust: deliver this Disclaimer to the trustee then serving or, if none is serving, to the court having jurisdiction to enforce the trust. If the disclaimer is made before the trust instrument becomes irrevocable, also deliver it to the settlor or transferor (12 Del. C. § 612(d)).

☐ Deliver this Disclaimer to the person making the beneficiary designation (if disclaimed before the designation becomes irrevocable) or to the person obligated to distribute the interest (if disclaimed after it becomes irrevocable).

☐ Deliver this Disclaimer to the person or persons to whom the disclaimed interest passes (for a disclaimer by a surviving owner of jointly held property).

☐ If the disclaimed interest is in real property, acknowledge the Disclaimer as a deed and record an original or attested copy in the Office of the Recorder of Deeds of [____________] County, Delaware to make it effective against persons without actual notice (12 Del. C. § 613). A disclaimer of a real-property interest created by a beneficiary designation must be recorded under § 612(f)(2).

9. SIGNATURE, ACKNOWLEDGMENT, AND NOTARIZATION

Executed this [____] day of [____________], 20[____].

Disclaimant Signature: ______________________________________

Printed Name: [________________________________]

ACKNOWLEDGMENT

STATE OF DELAWARE )
COUNTY OF [____________] )

Before me, the undersigned Notary Public in and for said county and state, personally appeared [DISCLAIMANT FULL LEGAL NAME], known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing instrument, who acknowledged before me that he/she executed the same voluntarily on the day the same bears date.

Given under my hand and official seal this [____] day of [____________], 20[____].

______________________________________
Notary Public
My commission expires: [__/__/____]

[NOTARY SEAL]

10. DISCLAIMANT'S FACTUAL CONFIRMATION

I, [DISCLAIMANT FULL LEGAL NAME], confirm that the foregoing is true and correct to the best of my knowledge, that I have not accepted the disclaimed interest or any benefit thereof, and that I make this Disclaimer of my own free will.

Signature: ______________________________________
Date: [__/__/____]

11. CERTIFICATE OF DELIVERY / SERVICE

I certify that on the date(s) shown below a true and correct copy of this Disclaimer was delivered (in person, by first-class mail, or by any other method likely to result in its receipt) to the following:

Signature: ______________________________________
Printed Name: [________________________________]

12. ATTACHMENTS CHECKLIST

☐ Copy of the Last Will and Testament, trust instrument, or beneficiary designation creating the disclaimed interest
☐ Exhibit A — legal description of any real property disclaimed
☐ Certified copy of the Decedent's Death Certificate
☐ Proof of delivery / mailing (registered or certified mail receipts)
☐ Recorded copy of the Disclaimer (Recorder of Deeds), if real property is involved
☐ File-stamped copy from the Register of Wills / Court of Chancery (estate proceeding)

SOURCES AND REFERENCES

• Delaware Disclaimer Act, 12 Del. C. ch. 6 (§§ 601 et seq.) — https://delcode.delaware.gov/title12/c006/index.html
• 12 Del. C. § 605 (Power to disclaim; requisites and execution) — https://law.justia.com/codes/delaware/title-12/chapter-6/section-605/
• 12 Del. C. § 606 (Disclaimer of interest in property) — https://law.justia.com/codes/delaware/title-12/chapter-6/section-606/
• 12 Del. C. §§ 612–613 (delivery and real-property recording requirements) — https://delcode.delaware.gov/title12/c006/index.html
• 26 U.S.C. § 2518 (Disclaimers) — https://www.law.cornell.edu/uscode/text/26/2518
• Treas. Reg. § 25.2518-2 (Requirements for a qualified disclaimer) — https://www.law.cornell.edu/cfr/text/26/25.2518-2