Planning Ahead

questions & answers

Question: How does a disclaimer of rights of survivorship in jointly held property work?

Answer:

When opening a multi party account, it is up to the parties to the account to decide how they would like the account to be set up. Multi party accounts may be formed with the right of survivorship or with no rights of survivorship. The term “right of survivorship” describes what happens to the decedent’s (the person who died) share of the account upon decedent’s death. If an account is set up with right of survivorship, when the decedent dies the other parties become the owners of the entire account.

If a multi party account is set up as having no right of survivorship, when the decedent dies, that share becomes part of the decedent’s estate. It is distributed to the decedent’s heirs or as directed in the decedent’s will. The other parties to the multi party account do not automatically become the owner of the decedent’s share as they would under an account with the right of survivorship. A third option is payable on death, which means that the parties to the multi party account name a person to receive the account balance when all the parties to the multi party account have died. The named person then assumes ownership of the account.

A disclaimer is a legal, written refusal of a gift or inheritance by someone otherwise entitled to receive the property. Once the property is refused (disclaimed) it passes to the next named beneficiary. The individual who disclaimed the property cannot have accepted, taken possession, or used the disclaimed property and has no say as to who receives the property. The property will pass as if the individual who is disclaiming had died before the decedent.

For a disclaimer of property to be valid under Arizona law, it must be in writing, it must describe the property or interest disclaimed, it must declare that the property or interest is being disclaimed and its extent, and it must be signed by the person disclaiming or that person’s proper representative. In addition, the disclaimer must be delivered by a surviving holder of jointly held property to the person to whom the disclaimed interest passes according to Arizona law. A.R.S. § 14-10012. If the disclaimer is to be a qualified disclaimer for tax purposes it must be made within nine months of the decedent’s death. 26 USCA § 2518 (c)(3). Arizona law does not have a similar time requirement. One important point is that the tax code does not permit the disclaimant, by disclaiming her survivorship interest in the decedent’s property, to name or designate who is to receive the disclaimed property interest.

Generally, the disclaimed property interest passes to any alternate beneficiary designated by the decedent. 26 USCA 2518 (b)(4). In Arizona, the understanding is that the property passes as if the disclaimant had died before the decedent. A.R.S. § 14-10007.

Example 1: What happens to the account if Husband and Wife are the only parties to the multi party account with right of survivorship and the Wife disclaims her interest in Husband’s share of the account? The account becomes part of Husband’s estate and passes as if the Wife had died before he did. Husband may have a clause in his will that directs where any disclaimed property is to go. Otherwise, the property is distributed according to the clause (the residue clause) in the will which states how property that is not specifically listed in the will of his estate should be distributed.

Example 2: What happens to the account with right of survivorship if there are more than two parties to the multi party account, such as Husband, Wife and X, and Husband dies first, and Wife disclaims? In this situation, Wife should deliver the disclaimer to X because X would be the sole owner of the account.