Title 105 · ORS Chapter 105

105.641, whichever occurs later. �� (6) A disclaimer made under ORS 105.623 to 105.649 is not a transfer, assignment or release. [2001 c.245 �5] �� 105.630 [1975 c.622 �2; 1981 c.56 �2; 198

Citation: ORS 105.641

Section: 105.641

105.641, whichever occurs later.

�� (6) A disclaimer made under ORS 105.623 to 105.649 is not a transfer, assignment or release. [2001 c.245 �5]

�� 105.630 [1975 c.622 �2; 1981 c.56 �2; 1983 c.740 �10; 1997 c.813 �1; repealed by 2001 c.245 �19]

�� 105.632 [1975 c.622 �3; 1981 c.56 �3; 1997 c.813 �2; repealed by 2001 c.245 �19]

�� 105.633 Disclaimer of interest in property. (1) For the purposes of this section:

�� (a) �Time of distribution� means the time when a disclaimed interest would have taken effect through possession or enjoyment.

�� (b) �Future interest� means an interest that takes effect through possession or enjoyment, if at all, at a time later than the time that the interest is created.

�� (2) Except for a disclaimer governed by ORS 105.634 or 105.636, the following rules apply to a disclaimer of an interest in property:

�� (a) The disclaimer takes effect when the instrument creating the interest becomes irrevocable or, if the interest arises under the law of intestate succession, when the decedent dies.

�� (b) The disclaimed interest passes according to any provision in the instrument creating the interest providing for the disposition of the specific interest in the event the interest is disclaimed, or according to any provision in the instrument creating the interest providing for the disposition of interests in general in the event the interests created by the instrument are disclaimed.

�� (3) If the instrument creating the interest does not contain a provision described in subsection (2)(b) of this section, or if the interest arises under the law of intestate succession, the following rules apply:

�� (a)(A) If the disclaimant is an individual, except as otherwise provided in subparagraphs (B) and (C) of this paragraph, the disclaimed interest passes as if the disclaimant had died immediately before the time of distribution.

�� (B) If by law or under the instrument the descendants of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died before the time of distribution, the disclaimed interest passes only to the descendants of the disclaimant who survive the time of distribution.

�� (C) If the disclaimed interest would pass to the disclaimant�s estate had the disclaimant died before the time of distribution, the disclaimed interest instead passes by representation to the descendants of the disclaimant who survive the time of distribution. If no descendant of the disclaimant survives the time of distribution, the disclaimed interest passes to those persons, including the state, but excluding the disclaimant, and in such shares, as would succeed to the transferor�s intestate estate under the intestate succession law of the transferor�s domicile had the transferor died at the time of distribution. However, if the transferor�s surviving spouse is living but is remarried at the time of distribution, the transferor is deemed to have died unmarried at the time of distribution.

�� (b) If the disclaimant is not an individual, the disclaimed interest passes as if the disclaimant did not exist.

�� (4) Upon the disclaimer of a preceding interest, 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, but a future interest held by the disclaimant is not accelerated in possession or enjoyment. [2001 c.245 �6; 2009 c.17 �1]

�� 105.634 Disclaimer of rights of survivorship in jointly held property. (1) Upon the death of a holder of jointly held property, a surviving holder may disclaim, in whole or part, the greater of:

�� (a) A fractional share of the property determined by dividing the number one by the number of joint holders alive immediately before the death of the holder to whose death the disclaimer relates; or

�� (b) All of the property except that part of the value of the entire interest attributable to the contribution furnished by the disclaimant.

�� (2) A disclaimer under subsection (1) of this section takes effect upon the death of the holder of jointly held property to whose death the disclaimer relates.

�� (3) An interest in jointly held property disclaimed by a surviving holder of the property passes as if the disclaimant predeceased the holder to whose death the disclaimer relates. [2001 c.245 �7]

�� 105.635 [1975 c.622 �4; 1981 c.56 �4; repealed by 2001 c.245 �19]

�� 105.636 Disclaimer of interest by trustee. If a trustee disclaims an interest in property that otherwise would have become trust property, the interest does not become trust property. [2001 c.245 �8]

�� 105.637 [1975 c.622 �5; repealed by 2001 c.245 �19]

�� 105.638 Disclaimer of power of appointment or other power not held in fiduciary capacity. If a holder disclaims a power of appointment or other power not held in a fiduciary capacity, the following rules apply:

�� (1) If the holder has not exercised the power, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable.

�� (2) If the holder has exercised the power and the disclaimer is of a power other than a presently exercisable general power of appointment, the disclaimer takes effect immediately after the last exercise of the power.

�� (3) The instrument creating the power is construed as if the power expired when the disclaimer became effective. [2001 c.245 �9]

�� 105.639 Disclaimer by appointee, object or taker in default of exercise of power of appointment. (1) A disclaimer of an interest in property by an appointee of a power of appointment takes effect as of the time the instrument by which the holder exercises the power becomes irrevocable.

�� (2) A disclaimer of an interest in property by a person who is an object of an exercise of a power of appointment, or by a person who is a taker in default of an exercise of a power of appointment, takes effect as of the time the instrument creating the power becomes irrevocable. [2001 c.245 �10]

�� 105.640 [1975 c.622 �7; repealed by 2001 c.245 �19]

�� 105.641 Disclaimer of power held in fiduciary capacity. (1) If a fiduciary disclaims a power held in a fiduciary capacity that has not been exercised, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable.

�� (2) If a fiduciary disclaims a power held in a fiduciary capacity that has been exercised, the disclaimer takes effect immediately after the last exercise of the power.

�� (3) A disclaimer under this section applies to another fiduciary if the disclaimer so provides and the fiduciary disclaiming has the authority to bind the estate, trust or other person for whom the fiduciary is acting. [2001 c.245 �11]

�� 105.642 Delivery or filing. (1) As used in this section, �beneficiary designation� means an instrument, other than an instrument creating a trust, naming the beneficiary of:

�� (a) An annuity or insurance policy;

�� (b) An account with a designation for payment on death;

�� (c) A security registered in beneficiary form;

�� (d) A pension, profit-sharing, retirement or other employment-related benefit plan; or

�� (e) Any other nonprobate transfer at death.

�� (2) Subject to subsections (3) to (12) of this section, delivery of a disclaimer may be made by personal delivery, first class mail or any other method likely to result in receipt of the disclaimer.

�� (3) If the interest to be disclaimed is created under the law of intestate succession or an interest created by will, other than an interest in a testamentary trust:

�� (a) A disclaimer must be delivered to the personal representative of the decedent�s estate; or

�� (b) If a personal representative is not serving at the time the disclaimer is made, the disclaimer must be filed with a court having authority to appoint the personal representative.

�� (4) In the case of an interest in a testamentary trust:

�� (a) A disclaimer must be delivered to the trustee;

�� (b) If a trustee is not serving at the time the disclaimer is made but a personal representative for the decedent�s estate is serving, the disclaimer must be delivered to the personal representative; or

�� (c) If neither a trustee nor a personal representative is serving at the time the disclaimer is made, the disclaimer must be filed with a court having authority to enforce the trust.

�� (5) In the case of an interest in an inter vivos trust:

�� (a) A disclaimer must be delivered to the trustee serving at the time the disclaimer is made;

�� (b) If a trustee is not serving at the time the disclaimer is made, the disclaimer must be filed with a court having authority to enforce the trust; or

�� (c) If the disclaimer is made before the time the instrument creating the trust becomes irrevocable, the disclaimer must be delivered to the settlor of a revocable trust or the transferor of the interest.

�� (6) In the case of an interest created by a beneficiary designation made before the time the designation becomes irrevocable, a disclaimer must be delivered to the person making the beneficiary designation.

�� (7) In the case of an interest created by a beneficiary designation made after the time the designation becomes irrevocable, a disclaimer must be delivered to the person obligated to distribute the interest.

�� (8) In the case of a disclaimer by a surviving holder of jointly held property, the disclaimer must be delivered to the person to whom the disclaimed interest passes.

�� (9) In the case of a disclaimer by a person who is an object of an exercise of a power of appointment or a taker in default of an exercise of a power of appointment at any time after the power was created:

�� (a) The disclaimer must be delivered to the holder of the power or to the fiduciary acting under the instrument that created the power; or

�� (b) If a fiduciary is not serving at the time the disclaimer is made, the disclaimer must be filed with a court having authority to appoint the fiduciary.

�� (10) In the case of a disclaimer by an appointee of a nonfiduciary power of appointment:

�� (a) The disclaimer must be delivered to the holder of the power, the personal representative of the holder�s estate or to the fiduciary under the instrument that created the power; or

�� (b) If a fiduciary is not serving at the time the disclaimer is made, the disclaimer must be filed with a court having authority to appoint the fiduciary.

�� (11) In the case of a disclaimer by a fiduciary of a power over a trust or estate, the disclaimer must be delivered as provided in subsection (3), (4) or (5) of this section as if the power disclaimed were an interest in property.

�� (12) In the case of a disclaimer of a power by an agent, the disclaimer must be delivered to the principal or the principal�s representative. [2001 c.245 �12]

�� 105.643 When disclaimer barred or limited. (1) A disclaimer is barred by a written waiver of the right to disclaim.

�� (2) A disclaimer of an interest in property is barred if any of the following events occurs before the disclaimer becomes effective:

�� (a) The disclaimant accepts the interest sought to be disclaimed;

�� (b) The disclaimant voluntarily assigns, conveys, encumbers, pledges or transfers the interest sought to be disclaimed or contracts to do so; or

�� (c) The interest sought to be disclaimed is sold pursuant to a judicial sale.

�� (3) A disclaimer, in whole or part, of the future exercise of a power held in a fiduciary capacity is not barred by the previous exercise of the power.

�� (4) A disclaimer, in whole or part, of the future exercise of a power not held in a fiduciary capacity is not barred by its previous exercise unless the power is exercisable in favor of the disclaimant.

�� (5) A disclaimer is barred or limited if so provided by a law other than ORS 105.623 to 105.649.

�� (6) A disclaimer is barred if the purpose or effect of the disclaimer is to prevent recovery of money or property to be applied against a judgment for restitution under ORS