Some Disclaimer Doctrines You May Not Know Much About

by Charles (Chuck) Rubin

As a general rule, a disclaimer of property by a recipient results in the property passing under state law or an applicable instrument as if the disclaimant predeceased the transfer to him or her. A recent article discusses two legal doctrines that may apply, if the disclaimed interest is a current income interest in a trust or a life estate in property. These two doctrines are not well known. Let’s see how these apply in the circumstances of a life income beneficiary of a trust disclaiming his or her income interest.

DOCTRINE OF ACCELERATION. This doctrine provides that if a prior interest is renounced or disclaimed (here, a current income interest), succeeding interests are accelerated, except when the circumstances manifest a contrary intent. Normally, then, when the lifetime interest holder disclaims, the remaindermen immediately succeed to the interest provided for them in the trust that would arise at the normal termination of the lifetime interest (e.g., based on what would occur at the death of the lifetime interest holder).

A circumstance when the succeeding interest may not be accelerated under the doctrine is a life estate to Steve, remainder to Karen, but if Karen is not then living, to George. In normal circumstances Karen would not be entitled to the property unless she survived Steve. If the determination date is moved up, George is eliminated even though Karen may not in fact survive Steve. Some courts may determine it inappropriate to accelerate Karen’s interest and thus cut out George just because Steve disclaimed his interest.

DOCTRINE OF THE NEXT EVENTUAL ESTATE. It is possible that with a disclaimer there is a gap in identifying who is entitled to income. For example, assume a trust provides that Steve is entitled to the income for life, and Karen gets the remainder after Steve’s death but not before she attains age 21. Steve disclaims his interest. Assume that under the Doctrine of Acceleration, Karen’s interest in the income is not accelerated.

There is now a gap as to who receives the income. Possible answers include the grantor of the trust, intestate takers, the residuary legatee, or perhaps the income is accumulated until Karen is 21. The Doctrine of the Next Eventual Estate, when applicable, generally provides that when income is not disposed of and there is no direction for its accumulation, it would pass to the persons entitled to the next eventual estate. Thus, in those states where the Doctrine is applicable, Karen would be entitled to the income after Steve’s disclaimer even if she was not yet 21.

STATE LAW. The application of these doctrines is state specific, and they are often incorporated into state property law statutes. In any case, they should be within the knowledge and lexicon of estate planners.

Unintended Effects of Disclaimers of Income Interests, by Jay A. Soled and Mitchell Gans, WG&L Estate Planning Journal, May 2012


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Charles (Chuck) Rubin, Gutter Chaves Josepher Rubin Forman Fleisher P.A. | Attorney Advertising

Written by:

Charles (Chuck) Rubin

Gutter Chaves Josepher Rubin Forman Fleisher P.A. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.