Florida Statute 739.402
“When disclaimer is barred or limited”
What it means
Not every disclaimer is allowed. A disclaimer is barred by a prior written waiver of the right to disclaim, and a disclaimer of a property interest is barred if, before it becomes effective, the disclaimant accepts the interest, voluntarily assigns, conveys, encumbers, pledges, or transfers it (or contracts to do so), or the interest is sold at a judicial sale.
Florida adds a fourth bar: the disclaimer fails if the disclaimant is insolvent when it becomes irrevocable — so a disclaimer cannot keep an inheritance away from the disclaimant's existing creditors. A barred disclaimer is simply ineffective; the interest stays where it was.
- A written waiver of the right to disclaim bars any later disclaimer.
- Accepting the interest, voluntarily assigning, conveying, encumbering, pledging, or transferring it — or contracting to — bars the disclaimer.
- A judicial sale of the interest before the disclaimer becomes effective bars it.
- Insolvency of the disclaimant when the disclaimer becomes irrevocable bars it — Florida's creditor-protection line.
- Prior exercise of a fiduciary power does not bar disclaiming its future exercise; the same holds for nonfiduciary powers unless exercisable in the disclaimant's favor.
- A barred disclaimer is ineffective.
How it plays out
The acceptance trap catches more disclaimers than anything else. Cashing one dividend check, moving into the house, taking a partial distribution — any of it can count as accepting the interest and end the option for good. When a disclaimer is even a possibility, we tell clients to touch nothing until the decision is made. The insolvency bar is the other hard stop: Florida closed the door on disclaiming away from creditors, and we screen for that exposure before drafting.
Questions people ask
