Florida Statute 739.402
“When disclaimer is barred or limited”
What it means
A disclaimer is barred by a written waiver of the right to disclaim (§ 739.402(1)). A disclaimer of an interest in property 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 (§ 739.402(2)(a)-(c)).
A disclaimer is also barred if the disclaimant is insolvent when it becomes irrevocable (§ 739.402(2)(d)). A disclaimer of the future exercise of a power held in a fiduciary capacity is not barred by its previous exercise. The same applies to a power not held in a fiduciary capacity unless it is exercisable in the disclaimant's favor (§ 739.402(3)-(4)). A disclaimer barred by this section is ineffective (§ 739.402(5)).
- A written waiver of the right to disclaim bars a disclaimer (§ 739.402(1)).
- Accepting the interest before the disclaimer becomes effective bars it (§ 739.402(2)(a)).
- Voluntarily assigning, conveying, encumbering, pledging, or transferring the interest, or contracting to do so, bars it (§ 739.402(2)(b)).
- A judicial sale of the interest before the disclaimer becomes effective bars it (§ 739.402(2)(c)).
- Insolvency of the disclaimant when the disclaimer becomes irrevocable bars it (§ 739.402(2)(d)).
- Prior exercise of a fiduciary power does not bar disclaiming its future exercise; a barred disclaimer is ineffective (§ 739.402(3), (5)).
Text of the statute (2026)
(1) A disclaimer is barred by a written waiver of the right to disclaim.
(2) A disclaimer of an interest in property is barred if any of the following events occur before the disclaimer becomes effective: (a) The disclaimant accepts the interest sought to be disclaimed; (b) The disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers the interest sought to be disclaimed or contracts to do so; (c) The interest sought to be disclaimed is sold pursuant to a judicial sale; or (d) The disclaimant is insolvent when the disclaimer becomes irrevocable.
(3) A disclaimer, in whole or in part, of the future exercise of a power held in a fiduciary capacity is not barred by its previous exercise. (4) A disclaimer, in whole or in part, of the future exercise of a power not held in a fiduciary capacity is not barred by its previous exercise unless the power is exercisable in favor of the disclaimant. (5) A disclaimer of an interest in, or a power over, property which is barred by this section is ineffective.
Excerpts are the subsections the summary relies on. Read the full official text of § 739.402.
History. s. 1, ch. 2005-108; s. 17, ch. 2009-115.
How it applies
Under § 739.402(2), taking the interest, or voluntarily transferring or encumbering it, before the disclaimer becomes effective ends the right to disclaim that interest. Insolvency is tested when the disclaimer becomes irrevocable, which ties to s. 739.104(5). The section lists no time limit of its own. A fiduciary or custodian who distributes in reliance on a disclaimer later found to be barred is protected if it lacked actual knowledge of the facts constituting the bar (s. 739.301(13)).
Questions people ask
Sources
- Fla. Stat. § 739.402, 2026 Florida Statutes (The Florida Senate) (Official text of the section. "A disclaimer is barred by a written waiver of the right to disclaim.")
- Fla. Stat. § 739.301, 2026 Florida Statutes (The Florida Senate) (Protection for a fiduciary without knowledge of a bar, subsection (13). "if the disclaimer is barred under s. 739.402")
Last checked: October 17, 2026
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