Section 114.105 of the Estates Code
- Section 114.105. Disclaimer.
- A designated beneficiary may disclaim all or part of the designated beneficiary's interest as provided by Chapter 122.
- Added 84th Leg., R.S., Ch. 841 (S.B. 462)
This section of the Texas Real Property Transfer on Death Act differs from Section 14 of the Uniform Real Property Transfer on Death Act in one regard.
The comment to Section 2 of the Uniform Act states: "If X fails to survive the transferor but has a descendant, Z, who survives the transferor, the antilapse statute may create a substitute gift in favor of Z. In such a case, the designated beneficiaries are X and Y, but the beneficiaries are Y and Z."
This section of the TRPTODA does not address whether a person entitled to receive real property under a transfer on death deed who is not a designated beneficiary, such as Z in the fact pattern set forth above, may disclaim.
It seems likely that the TRPTODA's drafters did not intend to make a substantive change and that this section and Section 14 of the Uniform Act have the same effect. Cf. Badouh v. Hale, 22 S.W.3d 392, 396 (Tex. 2000) ("This conclusion gives meaning to the language of the statute, advances section 37A(g)'s purpose, avoids unjust consequences, and makes sense in the statute's context.").
If that is correct, then any potential or actual beneficiary under a transfer on death deed may disclaim as provided by the Texas Uniform Disclaimer of Property Interests Act (Chapter 240, Property Code).
No appellate court decision has interpreted any section of the TRPTODA.
- Glad You Asked: Questions from Readers at 2 ("The statute allows grantees (designated beneficiaries) the right to disclaim all or a part of the property described in the TODD by complying with Chapter 122 of the Estates Code. This chapter, however, refers to Chapter 240 of the Texas Property Code for a description of the procedure.")
- Real Estate Practice-Tips For Probate, Estate, and Trust Lawyers at 14 ("A [transfer on death deed] beneficiary is permitted to disclaim the property. . . . Must be: (i) in writing, (ii) explicit in its disclaimer about what is disclaimed, (iii) signed by disclaimant, and (iv) acknowledged and recorded in the county where the property is located.")
- Transfer on Death Deeds: A Texas Primer at 5 ("The beneficiary of a TODD may disclaim the interest by following the normal disclaimer procedures set forth in Texas Estates Code Chapter 122 which in § 122.001 references the Texas Uniform Disclaimer of Property Interests Act found in Chapter 240 of the Texas Property Code.")
Uniform Act Text
- Section 14. Disclaimer.
- A beneficiary may disclaim all or part of the beneficiary's interest as provided by [cite state statute or the Uniform Disclaimer of Property Interests Act (1999/2006) (UPC Article II, Part 11)].
- Approved by ULC in 2009 (Uniform Act)
Uniform Act Comment
The official comments to the Uniform Act provide authoritative commentary regarding the drafters' intent.
For example, the comment to Section 14 states in part:
- Second, an effective disclaimer executed after the testator's death "relates back" to the moment of the attempted transfer, here the death of the transferor. Because the disclaimer "relates back," the beneficiary is regarded as never having had an interest in the disclaimed property.
The full comment is available on the Uniform Law Commission website.