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February 16, 2009

Qualified Disclaimer

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Definition

A written document, wherein the beneficiary irrevocably refuses to accept assets they would otherwise inherit.  The disclaimer must meet the following requirements in order to be qualified:

  1. It must be an irrevocable and unqualified refusal to accept interest in the property
  2. It must be in writing
  3. It must be received by the holder of the property ( for instance an IRA custodian or plan administrator) no later than  :
    1. 9 months after the owner of the property dies or if later
    2. 9 months after the beneficiary reaches age 21
  4. The beneficiary must not have accepted any interest in the property- for instance, the beneficiary must not have taken any distributions from the retirement account
  5. The assets must pass to the new beneficiary without any direction from the person making the disclaimer ( disclaimant)

Under a retirement plan, the new beneficiary would be:

  • Any other primary beneficiary of the retirement account, if there is no other primary  beneficiary
  • The contingent beneficiary(ies) of the retirement account, if there are none
  • The beneficiaries as determined by the default provisions of the plan agreement

Referring Cite

IRC § 2518, State law

Additional Helpful Information

  • A beneficiary can make a partial disclaimer or disclaim the entire interest
  • Disclaimants should consult with a tax planning attorney or other tax-expert on how a disclaimer would affect them from a financial and tax perspective
  • A beneficiary’s disclaimer of a beneficial interest in a decedent’s retirement account is still qualified even though prior to making the disclaimer, the beneficiary receives from the required minimum distribution for the year of the decedent’s death. Rev. Rul. 2005-36
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