What Does Renunciation of a Will Mean?

By Beverly Bird

Renunciation means giving up, or renouncing, your right to something. It is not uncommon for someone named in a last will and testament to renounce rights or property given to him in the will. Reasons might range from financial to personal. State laws are set up to allow this. No one can be forced by the terms of a will to do something they do not want to do.

Renunciation means giving up, or renouncing, your right to something. It is not uncommon for someone named in a last will and testament to renounce rights or property given to him in the will. Reasons might range from financial to personal. State laws are set up to allow this. No one can be forced by the terms of a will to do something they do not want to do.

Renunciation by Spouse

Most states will not allow you to disinherit your spouse. If you try, he has a legal right to “take against” or renounce your will in favor of accepting a statutory share of your estate instead. The percentage of the share varies from state to state but is usually one-third to half of the estate’s entire value. He can also do this if you leave him less than whatever the share is in your state. By renouncing your will, he declines to take whatever you did or did not leave to him and elects to take the share provided for in your state’s laws instead.

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Renunciation by Beneficiaries

A beneficiary can also renounce a gift or bequest made to her in a will. This sometimes occurs if the beneficiary wants to avoid tax liabilities that might be associated with the bequest. Because of this, Section 2518 of the Internal Revenue Code contains specific requirements for a beneficiary to decline an inheritance. Generally, the bequest reverts back to the estate when this happens and is distributed to other beneficiaries as though the original one had predeceased the testator, or the person who wrote the will.

Renunciation of Executor Duties

Executors named in a will might decline to serve in the position because they feel unqualified or simply don’t want to take on such a complex job. Executors can renounce a will and their appointment to oversee probate of the estate by filing a renunciation form with the probate court. Many states have procedures in their statutes to relieve the executor of duty if he does nothing toward probating the estate for a prescribed period of time, usually 30 days. This is called “implied renunciation.”

Renunciation by Potential Administrators

When someone dies intestate, without a will, or fails to name an executor for her estate in her will, the court will appoint someone to fill the position. A spouse usually has the first right to the position, followed by children of the deceased then more distant relatives. If a more distant relative wants to administer the estate, most states require that the spouse and children of the deceased first renounce their rights to do so because they would have been the first entitled to the job. Some states allow them to also nominate the person who does want to serve at the same time they renounce their rights to take the position.

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Who Pays the Debts of a Will?

References

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Spouse's Rights After Death

Marriage carries with it certain rights. Spouses have an obligation to support each other, even if one spouse just contributes household labor so the other is free to go out to work. Spouses also have obligations to each other after one of them dies, and these obligations translate to rights that states protect with their probate laws.

Probate Court: Dying Without a Will

The estate of someone who has died must generally pass through the probate process whether or not he left a will. This is because probate transfers the titles of assets from a deceased person to a living one. The only exception is if the deceased had no assets that require the transfer of title. Otherwise, when you die without a will, the laws of the state where you lived, called intestacy laws, determine who to transfer your property to, and no two states follow an identical code.

Husband's Contract to Waive Rights to an Elective Share of a Spouse's Property

Unless other arrangements are made, if a husband is not mentioned in his wife’s will or is bequeathed only a nominal amount, he can “elect against the will.” He can reject the terms of the document and accept a statutory or elective share of his spouse’s estate instead. The percentage of this share varies according to state law, but is often a third of the overall estate. For various reasons, a husband might be willing to contractually waive his rights to this elective share.

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