Florida Statute 739.104
“Power to disclaim; general requirements; when irrevocable”
What it means
A person may disclaim, in whole or in part, conditionally or unconditionally, any interest in or power over property, including a power of appointment, even if the creator imposed a spendthrift provision or restricted the right to disclaim. A disclaimer is unconditional unless it explicitly provides otherwise (§ 739.104(1)).
A fiduciary may disclaim with court approval, except that disclaiming a power under s. 739.201(4) needs none. Without approval, a fiduciary may disclaim only to the extent the instrument explicitly grants that right. With no court-appointed guardian, a natural guardian may disclaim for a minor child, without court approval, an interest the child receives solely because of another disclaimer, if it does not pass to or for the benefit of the natural guardian (§ 739.104(2)).
To be effective a disclaimer must be in writing, declare itself a disclaimer, describe the interest or power, and be signed by the disclaimant and witnessed and acknowledged as deeds of real estate to be recorded are. An original must be delivered or filed under s. 739.301 (§ 739.104(3)). It becomes irrevocable when any conditions are satisfied and it is delivered or filed, or becomes effective under ss. 739.201-739.207, whichever is later. It is not a transfer, assignment, or release (§ 739.104(5)-(6)).
- Any interest in or power over property may be disclaimed, in whole or in part, including a power of appointment (§ 739.104(1)).
- A spendthrift provision or a restriction on the right to disclaim does not prevent a disclaimer (§ 739.104(1)).
- A disclaimer must be in writing, declared as a disclaimer, signed, witnessed, and acknowledged like a recordable deed (§ 739.104(3)).
- An original must be delivered or filed as provided in s. 739.301 (§ 739.104(3)).
- A fiduciary generally needs court approval, unless the instrument explicitly grants the right to disclaim (§ 739.104(2)).
- A partial disclaimer may be a fraction, percentage, monetary amount, term of years, or limitation of a power; a disclaimer is not a transfer (§ 739.104(4), (6)).
Text of the statute (2026)
(1) A person may disclaim, in whole or in part, conditionally or unconditionally, any interest in or power over property, including a power of appointment. A person may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim. A disclaimer shall be unconditional unless the disclaimant explicitly provides otherwise in the disclaimer.
(2) With court approval, a fiduciary may disclaim, in whole or part, any interest in or power over property, including a power of appointment, except that a disclaimer of a power arising under s. 739.201(4) does not require court approval. Without court approval, a fiduciary may disclaim, in whole or in part, any interest in or power over property, including a power of appointment, if and to the extent that the instrument creating the fiduciary relationship explicitly grants the fiduciary the right to disclaim. In the absence of a court-appointed guardian, notwithstanding anything in chapter 744 to the contrary, without court approval, a natural guardian under s. 744.301 may disclaim on behalf of a minor child of the natural guardian, in whole or in part, any interest in or power over property, including a power of appointment, which the minor child is to receive solely as a result of another disclaimer, but only if the disclaimed interest or power does not pass to or for the benefit of the natural guardian as a result of the disclaimer.
(3) 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 to be recorded in this state. In addition, for a disclaimer to be effective, an original of the disclaimer must be delivered or filed in the manner provided in s. 739.301.
(4) A partial disclaimer may be expressed as a fraction, percentage, monetary amount, term of years, limitation of a power, or any other interest or estate in the property.
(5) A disclaimer becomes irrevocable when any conditions to which the disclaimant has made the disclaimer subject are satisfied and when the disclaimer is delivered or filed pursuant to s. 739.301 or it becomes effective as provided in ss. 739.201-739.207, whichever occurs later.
(6) A disclaimer made under this chapter is not a transfer, assignment, or release.
Excerpts are the subsections the summary relies on. Read the full official text of § 739.104.
History. s. 1, ch. 2005-108; s. 103, ch. 2006-1; s. 14, ch. 2009-115.
How it applies
Section 739.104 sets the form of a disclaimer. The writing must declare itself a disclaimer, describe what is disclaimed, and carry the same signature, witnessing, and acknowledgment formalities as a recordable deed. Effectiveness also depends on delivery or filing under s. 739.301. Where the disclaimant is a fiduciary, subsection (2) separates the cases that need court approval from those where the instrument grants the right. This section sets no deadline; s. 739.402 lists the events that bar a disclaimer, and s. 739.201 sets where disclaimed property passes.
Where this shows up
Pages on this site where § 739.104 does real work:
Questions people ask
Sources
- Fla. Stat. § 739.104, 2026 Florida Statutes (The Florida Senate) (Official text of the section. "A person may disclaim, in whole or in part, conditionally or unconditionally, any interest in or power over property, including a power of appointment.")
Last checked: October 17, 2026
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