TITLE 53 WILLS, TRUSTS, AND ADMINISTRATION OF ESTATES

Section 1. General Provisions, 53-1-1 through 53-1-20.

ARTICLE 3 RENUNCIATION

53-1-20. Renouncing property; procedures; relation back; abridgement; fiduciary duties.

For purposes of this Code section, the term "property" includes any interest in property and any power over or right with respect to the property.
Any person to whom an interest in property is transferred or who succeeds to property by contract or by operation of law may renounce the property in whole or in part as provided in this Code section. A person may renounce even if a spendthrift or similar restriction applies to the property renounced. Persons who may renounce include fiduciaries acting on behalf of an individual, such as personal representatives, trustees, conservators, or guardians, as well as duly authorized attorneys in fact, whether acting on behalf of an individual or fiduciary.
A renunciation must be made by a written instrument that describes the renounced property, declares the renunciation and the extent of it, and is signed by the person making the renunciation.
The written instrument must be received by the transferor of the property, the transferor's legal representative, or other holder of title to the property not later than the date which is nine months after the later of:
1. The date of the transfer; or
2. The day on which the person making the renunciation reaches the age of 21.
  The instrument may also be filed in the probate court of the county in which proceedings concerning the transferor's estate are pending or in which they could be commenced and, in the case of real property, in the real property records of the county in which the real property is located. An instrument so filed in the probate court shall be conclusively presumed to have been received by the personal representative of the transferor's estate not later than the date of such filing, but earlier receipt may be shown.
A person who has accepted property or any of its benefits may not renounce the property.
1. 1. Except as otherwise provided by the will or other governing instrument, a renunciation shall cause the renounced property to pass as if the person renouncing had predeceased the decedent or, in the case of property passing upon exercise of a power of appointment, as if the person renouncing had predeceased the holder of the power, even if the acceleration of a contingent remainder or other interest results. A will or other governing instrument may otherwise provide expressly or by implication, but the fact that a remainder or other future interest following a renounced interest is conditioned upon surviving the holder of such renounced interest shall not, without more, be sufficient to indicate that such conditioned interest should not accelerate by reason of such renunciation.
  2. Notwithstanding subparagraph (A) of this paragraph, solely for the purposes of the proviso of paragraph (5) and the proviso of paragraph (7) of subsection (c) of Code Section 53-2-1, any individual renouncing who is the only sibling or the only aunt or uncle surviving the decedent shall not be deemed to have predeceased the decedent.
2. Renounced property that is the subject of an attempted outright gift shall be treated as an incomplete gift.
3. A renounced power over property shall be treated as if such power had not been created with respect to the person renouncing such power.
4. The expression in a renunciation of an intent or desire that the property pass to certain persons shall be considered merely precatory and shall have no legal effect unless specifically declared to be a condition of the renunciation.
In every case a renunciation relates back for all purposes to the applicable date among the following:
1. The date of death of the decedent;
2. The date of the death of the holder of the power of appointment;
3. The date the gift was attempted; or
4. The date the power was created.
This Code section does not abridge the right of any person to transfer or renounce any property under any other statute or common law. Any renunciation that is otherwise valid but fails to meet the requirements of subsections (c) and (d) of this Code section shall operate as a transfer of the property to those persons who would have received it had the renunciation met those requirements.
Nothing in this Code section alters the duties of any fiduciary to act in the best interests of the person the fiduciary represents. This subsection shall not, however, limit the power granted by this Code section to a fiduciary to renounce property.

(Code 1981, §53-1-20, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1998, p. 1586, § 7; Ga. L. 2002, p. 1322, § 1; Ga. L. 2007, p. 210, § 1/HB 139; Ga. L. 2011, p. 752, § 53/HB 142.)

The 2011 amendment, effective May 13, 2011, part of an Act to revise, modernize, and correct the Code, designated the existing provisions of paragraph (f)(1) as subparagraphs (f)(1)(A) and (B); and, in subparagraph (f)(1)(B), substituted "subparagraph (A) of this paragraph, solely for the purposes of the proviso of paragraph (5) and the proviso of paragraph (7)" for "the foregoing, solely for the purposes of the last clause of paragraph (5) and the last clause of paragraph (7)".

Law reviews.

- For annual survey of wills, trusts, and administration of estates, see 42 Mercer L. Rev. 491 (1990). For annual survey article discussing wills, trusts, and administration of estates, see 51 Mercer L. Rev. 487 (1999). For note, "Linkous v. Candler: The Future of Acceleration of Remainders in Georgia," see 16 Ga. St. U.L. Rev. 879 (2000).

COMMENT

This subsection replaces former OCGA Sec. 53-2-115. The section mirrors the requirements of Internal Revenue Code section 2518 and related United States Treasury Regulations. The section is not intended to preempt other common law or statutory forms of renunciation but rather to provide a mechanism whereby persons may make renunciations that constitute "qualified disclaimers" under that Internal Revenue Code section.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 53-2-115 are included in the annotations for this Code section.

Term "encumbrance" in paragraph (d)(1) of former O.C.G.A. § 53-2-115 referred to an encumbrance placed on the property by the disclaimant, not an encumbrance existing at the time of the decedent's death. Brown v. Momar, Inc., 201 Ga. App. 542, 411 S.E.2d 718 (1991) (decided under former O.C.G.A. § 53-2-115).

"Acceptance".

- Heir's acceptance of $460 from decedent's accounts for use in purchasing personal clothing did not constitute the type of "acceptance" sufficient to preclude the heir's timely renunciation of the heir's testamentary interest. Jordan v. Trower, 208 Ga. App. 552, 431 S.E.2d 160 (1993) (decided under former O.C.G.A. § 53-2-115).

Acceleration "otherwise indicated" by testator.

- When, under the will, no wife or child of the testator's sons would have the right of possession to trust property prior to the death of the sons, the inter vivos renunciation of their immediate interests by the sons did not accelerate the remainder interests. Wetherbee v. First State Bank & Trust Co., 266 Ga. 364, 466 S.E.2d 835 (1996) (decided under former O.C.G.A. § 53-2-115).

Acceleration prohibited when class could not be ascertained.

- Trust agreement prohibited acceleration when the class of remaindermen consisted of living grandchildren of the settlor and beneficiary, so that the class could not be ascertained until the death of the settlor's and beneficiary's last child. Linkous v. Candler, 270 Ga. 284, 508 S.E.2d 657 (1998) (decided under former O.C.G.A. § 53-2-115).

Effect of renunciation on Medicaid benefits.

- While a Medicaid claimant was entitled under O.C.G.A. § 53-1-20 to renounce an inheritance under the will of the claimant's spouse, this did not insulate that choice from the application of Medicaid's eligibility regulations. Thus, the Georgia Department of Community Health properly denied Medicaid vendor benefits to the claimant. Ga. Dep't of Cmty. Health v. Medders, 292 Ga. App. 439, 664 S.E.2d 832 (2008).

Under O.C.G.A. § 53-1-20(g), a beneficiary's renunciation of a devise or bequest relates back to the date of death. However, nothing in § 53-1-20 requires the Georgia Department of Community Health to ignore the date a Medicaid claimant files a renunciation in applying its transfer-of-resource policies. Ga. Dep't of Cmty. Health v. Medders, 292 Ga. App. 439, 664 S.E.2d 832 (2008).

RESEARCH REFERENCES

ALR.

- Relinquishment of interest by life beneficiary in possession as accelerating remainder of which there is substitutional gift in case primary remainderman does not survive life beneficiary, 7 A.L.R.4th 1084.

Creditor's right to prevent debtor's renunciation of benefit under will or debtor's election to take under will, 39 A.L.R.4th 633.

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