What it means
This section answers the question every disclaimer raises: where does the property go instead? First, the instrument controls — if the will or trust says what happens to a disclaimed interest, that provision governs. Otherwise, the disclaimed interest passes as if the disclaimant had died immediately before the interest was created — for a will or intestacy, immediately before the decedent's death.
The disclaimer relates back — it takes effect as of when the instrument creating the interest became irrevocable, or at the intestate's death. Where the disclaimant's descendants would share by representation, the disclaimed interest passes only to descendants who survive the time of distribution; and a future interest the disclaimant also holds is not accelerated by the disclaimer.
- An explicit disclaimed-interest provision in the instrument controls the destination first.
- Default: the interest passes as if the disclaimant died immediately before the interest was created — for wills and intestacy, the decedent's death.
- If the interest is contingent on surviving to distribution, it passes as if the disclaimant died immediately before the time for distribution.
- Descendants taking by representation must survive the time of distribution.
- The disclaimer takes effect as of the moment the instrument became irrevocable, or at the intestate's death.
How it plays out
Before any client signs a disclaimer, we chart exactly where the property lands, because §739.201 is mechanical and occasionally surprising. Treating the disclaimant as already dead usually sends the share to their children — often the goal — but in a will with different contingent beneficiaries, or a trust with its own disclaimer clause, the destination can be someone nobody expected. A disclaimer cannot aim property at a chosen person; it only releases the interest into the document's existing machinery.
Questions people ask
