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B. Partial Disclaimers
Hamilton’s disclaimer is further complicated because it is a
“partial disclaimer.” The Code recognizes and allows partial
disclaimers. Sec. 2518(c)(1); sec. 25.2518-3(a), Gift Tax Regs.
But, whether partial or full, a disclaimer is a “qualified
disclaimer”--meaning that the Code will treat the disclaimed
property as if it had never gone to the disclaimant--only if it
meets four requirements. Sec. 2518(b). It must be in writing.
Sec. 2518(b)(1). It must (with some exceptions not relevant
here) be received by the personal representative of the estate no
later than nine months after the date of the transfer creating
the disclaimant’s interest. Sec. 2518(b)(2). It must not allow
the disclaimant to accept the disclaimed property or any of its
benefits. Sec. 2518(b)(3). And, finally, the disclaimed
interest must pass “without any direction on the part of the
person making the disclaimer and * * * to a person other than the
person making the disclaimer.” Sec. 2518(b)(4).
It’s the fourth requirement--and only part of the fourth
requirement8--that the parties are fighting over here: Did
Hamilton’s retention of the contingent-remainder interest in the
8 The requirement that the disclaimed property pass without
any direction on the part of the disclaimant is met here because
Christiansen directed in her will that, if Hamilton did disclaim
any of the property left to her, the disclaimed portion would be
split between the Trust and the Foundation in specified
percentages.
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