Disclaimer of Real Estate

Disclaimer of Real Estate – Thanks But No Thanks!

The recent Third District Court of Appeal opinion in Lee v. Lee, (Fla. 3d DCA January 23, 2019), addressed the question of whether a legal description for a disclaimer of real estate is required on a disclaimer.  The short answer to this question is that a disclaimer of real estate is valid without a legal description of the property, if it not to be recorded for purposes of providing constructive notice to one doing a title search for the property.

What happened in Lee? Nicole Lee executed a “Disclaimer of Interest in Property of Estate,” which document was prepared by the Personal Representative, and which did not contain a legal description of the real property.  The probate court ultimately determined that the disclaimer was legally insufficient because it did not specifically identify the real property being disclaimed. The probate court’s order was appealed.

The Third District Court of Appeal analyzed the applicable provisions of Florida’s Uniform Disclaimer of Property Interests Act, contained in Chapter 739 of the Florida Statutes.  To be effective, a disclaimer must be in writing, declare the writing as a disclaimer, describe the interest or power disclaimed, and be signed by the person making the disclaimer and witnessed and acknowledged in the manner provided for deeds of real estate, and be delivered or filed in the manner provided in Fla. Stat. 739.301.  Fla. Stat. 739.104(3).

If the disclaimer is to be recorded, because real property is involved, and constructive notice is necessary for title search purposes, then the disclaimer must go one extra step and include the legal description for the real property and be recorded in the office of the clerk of the court in the county where the real property is located.  Fla. Stat. 739.601(1).

The appellate court reasoned that, “if the legislature had intended for all disclaimers of real property, whether recorded or not, to contain a legal description, there would have been no need in section 739.601(1) to include a requirement of a legal description for disclaimers that would be recorded.”

The takeaway from this case is, if presented with a disclaimer related to a probate asset, and if you want to say “thanks but no thanks” as to receiving an inheritance, have that disclaimer reviewed by an experienced probate attorney who can advise you before signing.