MISSISSIPPI LEGISLATURE
2020 Regular Session
To: Judiciary, Division A
By: Senator(s) Doty, Jackson (11th)
AN ACT TO REVISE MISSISSIPPI LAW GOVERNING TRUSTS AND ESTATES; TO CREATE THE MISSISSIPPI REAL PROPERTY TRANSFER-ON-DEATH ACT; TO CREATE NEW SECTION 91-27-1, MISSISSIPPI CODE OF 1972, TO CREATE A SHORT TITLE; TO CREATE NEW SECTION 91-27-3, MISSISSIPPI CODE OF 1972, TO ENACT DEFINITIONS; TO CREATE NEW SECTIONS 91-27-5 AND 91-27-7, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR APPLICABILITY AND NONEXCLUSIVITY; TO CREATE NEW SECTIONS 91-27-9, 91-27-11 AND 91-27-13, MISSISSIPPI CODE OF 1972, TO AUTHORIZE A TRANSFER-ON-DEATH DEED THAT IS BOTH REVOCABLE AND NONTESTAMENTARY; TO CREATE NEW SECTION 91-27-15, MISSISSIPPI CODE OF 1972, TO REQUIRE CAPACITY ON THE PART OF THE TRANSFEROR; TO CREATE NEW SECTION 91-27-17, MISSISSIPPI CODE OF 1972, TO SET OTHER REQUIREMENTS; TO CREATE NEW SECTION 91-27-19, MISSISSIPPI CODE OF 1972, TO ALLOW WAIVER OF NOTICE, DELIVERY, ACCEPTANCE AND CONSIDERATION; TO CREATE NEW SECTION 91-27-21, MISSISSIPPI CODE OF 1972, TO SET LIMITS ON REVOCATION; TO CREATE NEW SECTION 91-27-23, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE EFFECT OF A TRANSFER-ON-DEATH DEED DURING A TRANSFEROR'S LIFE; TO CREATE NEW SECTION 91-27-25, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE EFFECT OF SUBSEQUENT CONVEYANCE; TO CREATE NEW SECTION 91-27-27, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE EFFECT AT TRANSFEROR'S DEATH; TO CREATE NEW SECTION 91-27-29, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE EFFECT OF LIENS, ENCUMBRANCES AND CREDITORS' CLAIMS; TO CREATE NEW SECTION 91-27-31, MISSISSIPPI CODE OF 1972, TO AUTHORIZE DISCLAIMER; TO CREATE NEW SECTION 91-27-33 AND 91-27-35, MISSISSIPPI CODE OF 1972, TO PROVIDE OPTIONAL FORMS; TO CREATE NEW SECTION 91-27-37, MISSISSIPPI CODE OF 1972, TO SPECIFY THE ACT'S RELATION TO ELECTRONIC SIGNATURES UNDER THE GLOBAL AND NATIONAL COMMERCE ACT; TO CREATE NEW SECTION 91-29-1, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR REVOCATION OF CERTAIN INSTRUMENTS EXECUTED BEFORE DIVORCE; TO CREATE NEW SECTION 91-29-3, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR TREATMENT OF A DECEDENT'S FORMER SPOUSE; TO CREATE NEW SECTION 91-29-5, MISSISSIPPI CODE OF 1972, TO ENACT DEFINITIONS; TO CREATE NEW SECTION 91-29-7, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR REVOCATION OF CERTAIN NONTESTAMENTARY TRANSFERS AND INSTRUMENTS UNDER WHICH THE FORMER SPOUSE MAY HAVE BEEN A BENEFICIARY; TO CREATE NEW SECTION 91-29-9, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE EFFECT OF REVOCATION; TO CREATE NEW SECTIONS 91-29-11 AND 91-29-13, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE LIABILITY OF THE FORMER SPOUSE AND CERTAIN OTHERS; TO CREATE NEW SECTION 91-29-15, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR CERTAIN TRUST WITH DIVORCED PARTIES AS JOINT SETTLORS; TO CREATE NEW SECTION 91-29-17, MISSISSIPPI CODE OF 1972, TO MAKE PROVISION FOR CERTAIN MULTIPLE-PARTY ACCOUNTS AND TO PROVIDE FOR TREATMENT OF A FORMER SPOUSE UNDER CERTAIN CIRCUMSTANCES; TO CREATE NEW SECTIONS 91-29-19 AND 91-29-21, MISSISSIPPI CODE OF 1972, TO CREATE STANDARDS FOR DETERMINING AFFINITY AND CONSANGUINITY; TO CREATE NEW SECTION 91-29-23, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE PRE-DECREE DESIGNATION OF EX-SPOUSE AS LIFE INSURANCE BENEFICIARY; TO CREATE NEW SECTION 91-29-25, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE PRE-DECREE DESIGNATION OF EX-SPOUSE AS RETIREMENT OR OTHER FINANCIAL PLAN BENEFICIARY; TO CREATE THE MISSISSIPPI UNIFORM ESTATE TAX APPORTIONMENT ACT; TO CREATE NEW SECTION 91-25-1, MISSISSIPPI CODE OF 1972, TO ENACT A SHORT TITLE; TO CREATE NEW SECTION 91-25-3, MISSISSIPPI CODE OF 1972, TO CREATE DEFINITIONS; TO CREATE NEW SECTION 91-25-5, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR APPORTIONMENT BY WILL; TO CREATE NEW SECTION 91-25-7, MISSISSIPPI CODE OF 1972, TO CREATE A STATUTORY SCHEME FOR APPORTIONMENT OF ESTATE TAXES; TO CREATE NEW SECTION 91-25-9, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR CREDITS AND DEFERRALS; TO CREATE NEW SECTION 91-25-11, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR INSTANCES WHEN PROPERTY IS IMPRACTICABLE OR UNAVAILABLE FOR PAYMENT OF TAX; TO CREATE NEW SECTION 91-25-13, MISSISSIPPI CODE OF 1972, TO MAKE RECAPTURE PROVISIONS; TO CREATE NEW SECTION 91-25-15, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR PAYMENT BY A FIDUCIARY; TO CREATE NEW SECTION 91-25-17, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR COLLECTION BY A FIDUCIARY; TO CREATE NEW SECTION 91-25-19, MISSISSIPPI CODE OF 1972, TO CREATE A RIGHT OF REIMBURSEMENT; TO CREATE NEW SECTION 91-25-21, MISSISSIPPI CODE OF 1972, TO PUT JURISDICTION IN THE CHANCERY COURT; TO CREATE NEW SECTION 91-25-23, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR UNIFORMITY; TO CREATE NEW SECTION 91-25-25, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR SEVERABILITY; TO CREATE NEW SECTION 91-25-27, MISSISSIPPI CODE OF 1972, TO MAKE TRANSITION PROVISIONS; TO PROVIDE FOR FOREIGN PERSONAL REPRESENTATIVES AND ANCILLARY ADMINISTRATION; TO CREATE NEW SECTION 91-7-501, MISSISSIPPI CODE OF 1972, TO ENACT DEFINITIONS; TO CREATE NEW SECTION 91-7-503, MISSISSIPPI CODE OF 1972, TO ALLOW AN ESTATE DEBTOR TO SETTLE THE OBLIGATION OUTSIDE OF ADMINISTRATION; TO CREATE NEW SECTION 91-7-505, MISSISSIPPI CODE OF 1972, TO RELEASE A DEBTOR ACTING IN GOOD FAITH; TO CREATE NEW SECTION 91-7-507, MISSISSIPPI CODE OF 1972, TO PROHIBIT PAYMENT OR DELIVERY UNDER CERTAIN CIRCUMSTANCES; TO CREATE NEW SECTION 91-7-509, MISSISSIPPI CODE OF 1972, TO ALLOW A DOMICILIARY FOREIGN PERSONAL REPRESENTATIVE TO FILE AUTHENTICATED COPIES OF A FOREIGN APPOINTMENT; TO CREATE NEW SECTION 91-7-511, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR POWERS OF A FOREIGN PERSONAL REPRESENTATIVE; TO CREATE NEW SECTION 91-7-513, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE CASE WHEN AN ADMINISTRATION IS PENDING IN THIS STATE; TO CREATE NEW SECTION 91-7-515, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR A NONRESIDENT DECEDENT; TO CREATE NEW SECTION 91-7-517, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR JURISDICTION OVER A FOREIGN PERSONAL REPRESENTATIVE; TO CREATE NEW SECTION 91-7-519, MISSISSIPPI CODE OF 1972, TO FURTHER PROVIDE FOR JURISDICTION OVER A FOREIGN PERSONAL REPRESENTATIVE; TO CREATE NEW SECTION 91-7-521, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR SERVICE OF PROCESS; TO CREATE NEW SECTION 91-7-523, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE EFFECT OF A FOREIGN ADJUDICATION; TO CREATE ARTICLE 5 OF THE UNIFORM TRUST CODE; TO CREATE NEW SECTION 91-8-501, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE RIGHTS OF A BENEFICIARY'S CREDITOR OR ASSIGNEE; TO CREATE NEW SECTION 91-8-502, MISSISSIPPI CODE OF 1972, TO CREATE A SPENDTHRIFT PROVISION; TO CREATE NEW SECTION 91-8-503, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A DISCRETIONARY INTEREST IS A MERE EXPECTANCY; TO CREATE NEW SECTION 91-8-504, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR CREDITORS' CLAIMS AGAINST SETTLORS; TO CREATE NEW SECTION 91-8-505, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR DISTRIBUTIONS RELATIVE TO SUPPORT AND CERTAIN REMAINDER INTERESTS; TO CREATE NEW SECTION 91-8-506, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT TRUST PROPERTY IS NOT SUBJECT TO PERSONAL OBLIGATIONS OF THE TRUSTEE; TO CREATE NEW SECTION 91-8-507, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE REMOVAL OR REPLACEMENT POWER OVER A TRUSTEE; TO CREATE NEW SECTION 91-8-508, MISSISSIPPI CODE OF 1972, TO PROHIBIT JUDICIAL FORECLOSURE OF CERTAIN INTERESTS; TO AMEND SECTION 91-8-105, MISSISSIPPI CODE OF 1972, TO CONFORM; TO REPEAL SECTIONS 27-10-1 THROUGH 27-10-25, MISSISSIPPI CODE OF 1972, WHICH CONSTITUTE THE UNIFORM ESTATE TAX APPORTIONMENT ACT; TO REPEAL SECTIONS 89-21-1 THROUGH 89-21-17, MISSISSIPPI CODE OF 1972, WHICH CONSTITUTE THE UNIFORM DISCLAIMER OF PROPERTY INTERESTS ACT; TO REPEAL SECTIONS 91-9-501 THROUGH 91-9-511, MISSISSIPPI CODE OF 1972, WHICH CONSTITUTE THE FAMILY TRUST PRESERVATION ACT OF 1998; TO REPEAL SECTION 91-7-259, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR FOREIGN FIDUCIARIES AND LAWSUITS AND DEBTS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 91-27-1, Mississippi Code of 1972:
91-27-1. Short title. Sections 1 through 19 of this act may be cited as the Mississippi Real Property Transfer-On-Death Act.
SECTION 2. The following shall be codified as Section 91-27-3, Mississippi Code of 1972:
97-27-3. Definitions. (a) "Beneficiary" means a person who receives real property under a transfer-on-death deed.
(b) "Designated beneficiary" means a person designated to receive real property in a transfer-on-death deed.
(c) "Joint owner with right of survivorship" or "joint owner" means an individual who owns real property concurrently with one or more other individuals with a right of survivorship. The term includes a joint tenant and a tenant by the entirety. The term does not include a tenant in common.
(d) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(e) "Real property" means an interest in real property located in this state.
(f) "Transfer-on-death deed" means a deed authorized under this chapter and does not refer to any other deed that transfers an interest in real property on the death of an individual.
(g) "Transferor" means an individual who makes a transfer-on-death deed.
(h) In this chapter, the terms "cancel" and "revoke" are synonymous.
SECTION 3. The following shall be codified as Section 91-27-5, Mississippi Code of 1972:
97-27-5. Applicability. This chapter applies to a transfer-on-death deed executed and acknowledged on or after the effective date of this act, by a transferor who dies on or after the effective date of this act.
SECTION 4. The following shall be codified as Section 91-27-7, Mississippi Code of 1972:
97-27-7. Nonexclusivity. This chapter does not affect any method of transferring real property otherwise permitted under the laws of this state.
SECTION 5. The following shall be codified as Section 91-27-9, Mississippi Code of 1972:
97-27-9. Transfer-on-death deed authorized. An individual may transfer the individual's interest in real property to one or more beneficiaries effective at the transferor's death by a transfer-on-death deed.
SECTION 6. The following shall be codified as Section 91-27-11, Mississippi Code of 1972:
97-27-11. Transfer-on-death deed revocable. A transfer-on-death deed must be executed as set forth in Title 89, Chapter 3, Mississippi Code or 1972, relating to necessary acknowledgements, and need not be executed with the formalities of a will.
SECTION 7. The following shall be codified as Section 91-27-13, Mississippi Code of 1972:
91-27-13. Transfer-on-death deed nontestamentary. A transfer-on-death deed is a nontestamentary instrument.
SECTION 8. The following shall be codified as Section 91-27-15, Mississippi Code of 1972:
91-27-15. Capacity of transferor. (a) The capacity required to make or revoke a transfer-on-death deed is the same as the capacity required to make a contract.
(b) A transfer-on-death deed may not be created through use of a power of attorney unless the transfer of real property through a transfer-on-death deed is specifically authorized in the power of attorney.
SECTION 9. The following shall be codified as Section 91-27-17, Mississippi Code of 1972:
91-27-17. Requirements. To be effective, a transfer-on-death deed must:
(1) Except as otherwise provided in subsection (2), contain the essential elements and formalities of a recordable deed;
(2) State that the transfer of an interest in real property to the designated beneficiary is to occur at the transferor's death;
(3) Be recorded before the transferor's death in the deed records in the official records of the chancery clerk of the county where the real property is located.
SECTION 10. The following shall be codified as Section 91-27-19, Mississippi Code of 1972:
91-27-19. Notice, delivery, acceptance, consideration not required. A transfer-on-death deed is effective without:
(1) Notice or delivery to or acceptance by the designated beneficiary during the transferor's life; or
(2) Consideration.
SECTION 11. The following shall be codified as Section 91-27-21, Mississippi Code of 1972:
91-27-21. Revocation by instrument authorized; revocation by act not permitted. (a) Subject to subsections (d) and (e), an instrument is effective to revoke a recorded transfer-on-death deed, or any part of it, if the instrument:
(1) Is one (1) of the following:
(A) A subsequent transfer-on-death deed that revokes the preceding transfer-on-death deed or part of the deed expressly or by inconsistency; or
(B) Except as provided by subsection (b), an instrument of revocation that expressly revokes the transfer-on-death deed or part of the deed;
(2) Is acknowledged by the transferor after the acknowledgment of the deed being revoked; and
(3) Is recorded before the transferor's death in the official records of the chancery clerk of the county where the deed being revoked is recorded.
(b) A will does not revoke or supersede a transfer-on-death deed.
(c) If a marriage between the transferor and a designated beneficiary is dissolved after a transfer-on-death deed is recorded, a final judgment of the court dissolving the marriage operates to revoke the transfer-on-death deed as to that designated beneficiary.
(d) If a transfer-on-death deed is made by more than one (1) transferor, revocation by a transferor does not affect the deed as to the interest of another transferor who does not make that revocation.
(e) A transfer-on-death deed made by joint owners with right of survivorship is revoked only if it is revoked by all of the living joint owners.
(f) This section does not limit the effect of an inter vivos transfer of the real property.
SECTION 12. The following shall be codified as Section 91-27-23, Mississippi Code of 1972:
91-27-23. Effect of transfer-on-death deed during transferor's life. During a transferor's life, a transfer-on-death deed does not:
(1) Affect an interest or right of the transferor or any other owner, including:
(A) The right to transfer or encumber the real property that is the subject of the deed;
(B) Homestead rights in the real property, if applicable; and
(C) Ad valorem tax exemptions, including exemptions for residence homestead, persons sixty-five (65) years of age or older, persons with disabilities, and veterans;
(2) Affect an interest or right of a transferee of the real property that is the subject of the deed, even if the transferee has actual or constructive notice of the deed;
(3) Affect an interest or right of a secured or unsecured creditor or future creditor of the transferor, even if the creditor has actual or constructive notice of the deed;
(4) Affect the transferor's or designated beneficiary's eligibility for any form of public assistance, subject to applicable federal law;
(5) Constitute a transfer triggering a "due-on-sale" or similar clause;
(6) Invoke statutory real estate notice or disclosure requirements;
(7) Create a legal or equitable interest in favor of the designated beneficiary; or
(8) Subject the real property to claims or process of a creditor of the designated beneficiary.
SECTION 13. The following shall be codified as Section 91-27-25, Mississippi Code of 1972:
91-27-25. Effect of subsequent conveyance on transfer-on-death deed. An otherwise valid transfer-on-death deed is void as to any interest in real property that is conveyed by the transferor during the transferor's lifetime after the transfer-on-death deed is executed and recorded if:
(1) A valid instrument conveying the interest is recorded in the official records of the chancery clerk of the same county in which the transfer-on-death deed is recorded; and
(2) The recording of the instrument occurs before the transferor's death.
SECTION 14. The following shall be codified as Section 91-27-27, Mississippi Code of 1972:
91-27-27. Effect of transfer-on-death deed at transferor's death. On the death of the transferor, the following rules apply to an interest in real property that is the subject of a transfer-on-death deed and owned by the transferor at death except as otherwise provided: in the transfer-on-death deed; in this Title 91, Chapter 27, Mississippi Code of 1972; in Title 91, Chapter 29, Mississippi Code of 1972, relating to revocation by divorce; in Section 91-1-25 relating to the prohibition on inheriting from a person whom one has killed; in Title 91, Chapter 3, Mississippi Code of 1972, the Mississippi Uniform Simultaneous Death Act; and in Section 91-5-25 relating to the spousal right to renounce a will:
(1) If a transferor is a joint owner with right of survivorship who is survived by one or more other joint owners, the real property that is the subject of the transfer-on-death deed belongs to the surviving joint owner or owners. If a transferor is a joint owner with right of survivorship who is the last-surviving joint owner, the transfer-on-death deed is effective.
(2) The last-surviving joint owner may revoke the transfer-on-death deed subject to Section 91-27-19.
(3) A transfer-on-death deed transfers real property without covenant or warranty of title even if the deed contains a contrary provision.
(4) The interest in the property is transferred to a designated beneficiary in accordance with the deed, but the interest of a designated beneficiary is contingent on the designated beneficiary surviving the transferor. The interest of a designated beneficiary that fails to survive the transferor lapses.
(5) Concurrent interests are transferred to the beneficiaries in equal and undivided shares with no right of survivorship, but if the transferor has identified two (2) or more designated beneficiaries to receive concurrent interests in the property, the share of one which lapses or fails for any reason is transferred to the other, or to the others in proportion to the interest of each in the remaining part of the property held concurrently.
SECTION 15. The following shall be codified as Section 91-27-29, Mississippi Code of 1972:
91-27-29. Transfer-on-death deed property subject to liens and encumbrances at transferor's death; creditors' claims. Subject to Title 89, Chapter 5, Mississippi Code of 1972, relating to the recordation of instruments, a designated beneficiary takes the real property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens, and other interests to which the real property is subject at the transferor's death. For purposes of this subsection and Title 89, Chapter 5, Mississippi Code of 1972, the recording of the transfer-on-death deed is considered to have occurred at the transferor's death.
SECTION 16. The following shall be codified as Section 91-27-31, Mississippi Code of 1972:
91-27-31. Disclaimer. A designated beneficiary may disclaim all or part of the designated beneficiary's interest as provided by the Mississippi Uniform Disclaimer of Property Interests Act (2002/2010), Title 89, Chapter 22, Mississippi Code of 1972.
SECTION 17. The following shall be codified as Section 91-27-33, Mississippi Code of 1972:
91-27-33. Optional form for transfer-on-death deed. The following form may be used to create a transfer-on-death deed. This chapter governs the effect of this or any other instrument used to create a transfer-on-death deed:
REVOCABLE TRANSFER-ON-DEATH DEED
NOTICE TO OWNER
You should carefully read all information on the other side of this form. YOU MAY WANT TO CONSULT A LAWYER BEFORE USING THIS FORM.
This form must be recorded before your death, or it will not be effective.
IDENTIFYING INFORMATION
Owner or Owners Making This Deed:
___________________________ _______________________________
Printed name Mailing address
___________________________ _______________________________
Printed name Mailing address
Legal description of the property:
_____________________________________________________________
PRIMARY BENEFICIARY
I designate the following beneficiary if the beneficiary survives me.
___________________________ _______________________________
Printed name Mailing address, if available
ALTERNATE BENEFICIARY – Optional
If my primary beneficiary does not survive me, I designate the following alternate beneficiary if that beneficiary survives me.
__________________________ _____________________________
Printed name Mailing address, if available
TRANSFER-ON-DEATH
At my death, I transfer my interest in the described property to the beneficiaries as designated above.
Before my death, I have the right to revoke this deed as set forth in Section 97-27-21, Mississippi Code of 1972.
SIGNATURE OF OWNER OR OWNERS MAKING THIS DEED
______________________________ _________________
Signature Date
______________________________ _________________
Signature Date
ACKNOWLEDGMENT
(insert acknowledgment for deed here)
SECTION 18. The following shall be codified as Section 91-27-35, Mississippi Code of 1972:
91-27-35. Optional form of revocation. The following form may be used to create an instrument of revocation of a transfer-on-death deed. This chapter governs the effect of this or any other instrument used to revoke a transfer-on-death deed.
REVOCATION OF TRANSFER-ON-DEATH DEED
NOTICE TO OWNER
This revocation must be recorded before you die or it will not be effective. This revocation is effective only as to the interests in the property of owners who sign this revocation.
IDENTIFYING INFORMATION
Owner or Owners of Property Making This Revocation:
___________________________ _____________________________
Printed name Mailing address
___________________________ _____________________________
Printed name Mailing address
Legal description of the property:
___________________________________________________________
REVOCATION
I revoke all my previous transfers of this property by transfer-on-death deed.
SIGNATURE OF OWNER OR OWNERS MAKING THIS REVOCATION
_____________________________ _________________
Signature Date
_____________________________ _________________
Signature Date
ACKNOWLEDGMENT
(insert acknowledgment here)
SECTION 19. The following shall be codified as Section 91-27-37, Mississippi Code of 1972:
91-27-37. Relation to electronic signatures in Global and National Commerce Act. This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C.
SECTION 20. The following shall be codified as Section 91-29-1, Mississippi Code of 1972:
91-29-1. Will provisions made before dissolution of marriage. (a) In this section:
(1) "Irrevocable trust" means a trust:
(A) For which the trust instrument was executed before the dissolution of a testator's marriage; and
(B) That the testator was not solely empowered by law or by the trust instrument to revoke.
(2) "Relative" means an individual related to another individual by:
(A) Consanguinity, as determined under Section 91-29-17; or
(B) Affinity, as determined under Section 91-29-19.
(b) If, after the testator makes a will, the testator's marriage is dissolved by divorce, annulment, or a declaration that the marriage is void, unless the will expressly provides otherwise:
(1) All provisions in the will, including all fiduciary appointments, shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator had failed to survive the testator; and
(2) All provisions in the will disposing of property to an irrevocable trust in which a former spouse or a relative of a former spouse who is not a relative of the testator is a beneficiary or is nominated to serve as trustee or in another fiduciary capacity or that confers a general or special power of appointment on a former spouse or a relative of a former spouse who is not a relative of the testator shall be read to instead dispose of the property to a trust the provisions of which are identical to the irrevocable trust, except any provision in the irrevocable trust:
(A) Conferring a beneficial interest or a general or special power of appointment to the former spouse or a relative of the former spouse who is not a relative of the testator shall be treated as if the former spouse and each relative of the former spouse who is not a relative of the testator had disclaimed the interest granted in the provision; and
(B) Nominating the former spouse or a relative of the former spouse who is not a relative of the testator to serve as trustee or in another fiduciary capacity, or trust protector, trust advisor, investment advisor or similar capacity, shall be treated as if the former spouse and each relative of the former spouse who is not a relative of the testator had died immediately before the dissolution of the marriage.
(c) Subsection (b)(2) does not apply if one (1) of the following provides otherwise:
(1) A court order; or
(2) An express provision of a contract relating to the division of the marital estate entered into between the testator and the testator's former spouse before, during, or after the marriage.
SECTION 21. The following shall be codified as Section 91-29-3, Mississippi Code of 1972:
91-29-3. Treatment of decedent's former spouse. A person is not a surviving spouse of a decedent if the person's marriage to the decedent has been dissolved by divorce, annulment, or a declaration that the marriage is void, unless:
(1) As the result of a subsequent marriage, the person is married to the decedent at the time of death; and
(2) The subsequent marriage is not declared void.
SECTION 22. The following shall be codified as Section 91-29-5, Mississippi Code of 1972:
91-29-5. Definitions. In this chapter:
(1) "Disposition or appointment of property" includes a transfer of property to or a provision of another benefit to a beneficiary under a trust instrument.
(2) "Divorced individual" means an individual whose marriage has been dissolved by divorce, annulment, or a declaration that the marriage is void.
(3) "Relative" means an individual who is related to another individual by consanguinity or affinity, as determined under Sections 91-29-17 and 91-25-19.
(4) "Revocable," with respect to a disposition, appointment, provision, or nomination, means a disposition to, appointment of, provision in favor of, or nomination of an individual's spouse that is contained in a trust instrument executed by the individual before the dissolution of the individual's marriage to the spouse and that the individual was solely empowered by law or by the trust instrument to revoke regardless of whether the individual had the capacity to exercise the power at that time.
SECTION 23. The following shall be codified as Section 91-29-7, Mississippi Code of 1972:
91-29-7. Revocation of certain nontestamentary transfers; treatment of former spouse as beneficiary under certain policies or plans. (a) The dissolution of the marriage revokes a provision in a trust instrument that was executed by a divorced individual as settlor before the divorced individual's marriage was dissolved and that:
(1) Is a revocable disposition or appointment of property made to the divorced individual's former spouse or any relative of the former spouse who is not a relative of the divorced individual;
(2) Revocably confers a general or special power of appointment on the divorced individual's former spouse or any relative of the former spouse who is not a relative of the divorced individual; or
(3) Revocably nominates the divorced individual's former spouse or any relative of the former spouse who is not a relative of the divorced individual to serve:
(A) As a personal representative, trustee, conservator, agent, or guardian; or
(B) In another fiduciary or representative capacity.
(b) Subsection (a) does not apply if one (1) of the following provides otherwise:
(1) A court order;
(2) The express terms of a trust instrument executed by the divorced individual before the individual's marriage was dissolved; or
(3) An express provision of a contract relating to the division of the marital estate entered into between the divorced individual and the individual's former spouse before, during, or after the marriage.
(c) Sections 91-29-21 and 91-29-23 govern the designation of a former spouse as a beneficiary of certain life insurance policies or as a beneficiary under certain retirement benefit plans or other financial plans.
SECTION 24. The following shall be codified as Section 91-29-9, Mississippi Code of 1972:
91-29-9. Effect of revocation. (a) An interest granted in a provision of a trust instrument that is revoked under Section 91-29-7(a)(1) or (2) passes as if the former spouse of the divorced individual who executed the trust instrument and each relative of the former spouse who is not a relative of the divorced individual disclaimed the interest granted in the provision.
(b) An interest granted in a provision of a trust instrument that is revoked under Section 91-29-7(a)(3) passes as if the former spouse and each relative of the former spouse who is not a relative of the divorced individual died immediately before the dissolution of the marriage.
SECTION 25. The following shall be codified as Section 91-29-11, Mississippi Code of 1972:
91-29-11. Liability of certain purchasers or recipients of certain payments, benefits, or property. A bona fide purchaser of property from a divorced individual's former spouse or any relative of the former spouse who is not a relative of the divorced individual or a person who receives from the former spouse or any relative of the former spouse who is not a relative of the divorced individual a payment, benefit, or property in partial or full satisfaction of an enforceable obligation:
(1) Is not required by this chapter to return the payment, benefit, or property; and
(2) Is not liable under this chapter for the amount of the payment or the value of the property or benefit.
SECTION 26. The following shall be codified as Section 91-29-13, Mississippi Code of 1972:
91-29-13. Liability of former spouse for certain payments, benefits or property. A divorced individual's former spouse or any relative of the former spouse who is not a relative of the divorced individual who, not for value, receives a payment, benefit, or property to which the former spouse or the relative of the former spouse who is not a relative of the divorced individual is not entitled as a result of Sections 91-29-7 (a) and (b):
(1) Shall return the payment, benefit, or property to the person who is entitled to the payment, benefit, or property under this chapter; or
(2) Is personally liable to the person described by paragraph (1) for the amount of the payment or the value of the benefit or property received, as applicable.
SECTION 27. The following shall be codified as Section 91-29-15, Mississippi Code of 1972:
91-29-15. Certain trusts with divorced individuals as joint settlors. (a) This section applies only to a trust created under a trust instrument that:
(1) Was executed by two (2) married individuals as settlors whose marriage to each other is subsequently dissolved; and
(2) Includes a provision described by Section 91-29-7(a).
(b) On the death of one (1) of the divorced individuals who is a settlor of a trust to which this section applies, the trustee shall divide the trust into two (2) trusts, each of which shall be composed of the property attributable to the contributions of only one (1) of the divorced individuals.
(c) An action authorized in a trust instrument described by subsection (a) that requires the actions of both divorced individuals may be taken with respect to a trust established in accordance with subsection (b) from the surviving divorced individual's contributions solely by that divorced individual.
(d) The provisions of this chapter apply independently to each trust established in accordance with subsection (b) as if the divorced individual from whose contributions the trust was established had been the only settlor to execute the trust instrument described by subsection (a).
(e) This section does not apply if one (1) of the following provides otherwise:
(1) A court order;
(2) The express terms of a trust instrument executed by the two (2) divorced individuals before their marriage was dissolved; or
(3) An express provision of a contract relating to the division of the marital estate entered into between the two (2) divorced individuals before, during, or after their marriage.
SECTION 28. The following shall be codified as Section 91-29-17, Mississippi Code of 1972:
91-29-17. Designation of former spouse or relative of former spouse on certain multiple-party accounts. (a) In this section:
(1) "Beneficiary," "multiple-party account, "party," "P.O.D. account," "P.O.D. payee," "T.O.D. account," and "T.O.D. payee" have the meanings assigned in Title 91, Chapter 21, Mississippi Code of 1972.
(2) "Public retirement system" has the meaning assigned by Section 25-11-101.
(b) If a decedent established a P.O.D. account, T.O.D. account, or other multiple-party account and the decedent's marriage was later dissolved by divorce, annulment, or a declaration that the marriage is void, any payable on request after death designation provision with respect to that account in favor of the decedent's former spouse or a relative of the former spouse who is not a relative of the decedent is not effective as to that spouse or relative unless:
(1) The court decree dissolving the marriage designates the former spouse or the former spouse's relative as the P.O.D. payee, T.O.D. payee, or beneficiary; or
(2) After the marriage was dissolved, the decedent redesignated the former spouse or the former spouse's relative as the P.O.D payee, T.O.D. payee, or beneficiary; or
(3) The former spouse or the former spouse's relative is designated to receive the proceeds or benefits in trust for, on behalf of, or for the benefit of a child or dependent of either the decedent or the former spouse.
(c) If a designation is not effective under subsection (b), a multiple-party account is payable to the named alternative P.O.D. payee, T.O.D. payee, or beneficiary or, if an alternative P.O.D. payee, T.O.D. payee, or beneficiary is not named, to the estate of the decedent.
(d) A financial institution or other person obligated to pay an account described by subsection (b) that pays the account to the former spouse or the former spouse's relative as P.O.D. payee, T.O.D. payee, or beneficiary under a designation that is not effective under subsection (b) is liable for payment of the account to the person provided by subsection (c) only if:
(1) Before payment of the account to the designated P.O.D. payee, T.O.D. payee, or beneficiary, the payor receives written notice at the home office or principal office of the payor from an interested person that the designation of the P.O.D. payee, T.O.D. payee, or beneficiary is not effective under subsection (b); and
(2) The payor has not interpleaded the account funds into the registry of a court of competent jurisdiction in accordance with the Mississippi Rules of Civil Procedure.
(e) This section does not affect the right of a former spouse to assert an ownership interest in an undivided multiple-party account described by subsection (b).
(f) This section does not apply to the disposition of a beneficial interest in a retirement benefit or other financial plan of a public retirement system.
SECTION 29. The following shall be codified as Section 91-29-19, Mississippi Code of 1972:
91-29-19. Determination of consanguinity. (a) Two (2) individuals are related to each other by consanguinity if:
(1) One (1) is a descendant of the other; or
(2) They share a common ancestor.
(b) An adopted child is considered to be a child of the adoptive parent for this purpose.
SECTION 30. The following shall be codified as Section 91-29-29, Mississippi Code of 1972:
91-29-29. Determination of affinity. (a) Two (2) individuals are related to each other by affinity if:
(1) They are married to each other; or
(2) The spouse of one (1) of the individuals is related by consanguinity to the other individual.
(b) The ending of a marriage by divorce or the death of a spouse ends relationships by affinity created by that marriage.
SECTION 31. The following shall be codified as Section 91-29-23, Mississippi Code of 1972:
91-29-23. Pre-decree designation of ex-spouse as beneficiary of life insurance. (a) If a decree of divorce or annulment is rendered after an insured has designated the insured's spouse as a beneficiary under a life insurance policy in force at the time of rendition, a provision in the policy in favor of the insured's former spouse is not effective unless:
(1) The decree designates the insured's former spouse as the beneficiary;
(2) The insured redesignates the former spouse as the beneficiary after rendition of the decree; or
(3) The former spouse is designated to receive the proceeds in trust for, on behalf of, or for the benefit of a child or a dependent of either former spouse.
(b) If a designation is not effective under subsection (a), the proceeds of the policy are payable to the named alternative beneficiary or, if there is not a named alternative beneficiary, to the estate of the insured.
(c) An insurer who pays the proceeds of a life insurance policy issued by the insurer to the beneficiary under a designation that is not effective under subsection (a) is liable for payment of the proceeds to the person or estate provided by subsection (b) only if:
(1) Before payment of the proceeds to the designated beneficiary, the insurer receives written notice at the home office of the insurer from an interested person that the designation is not effective under subsection (a); and
(2) The insurer has not interpleaded the proceeds into the registry of a court of competent jurisdiction in accordance with the Mississippi Rules of Civil Procedure.
SECTION 32. The following shall be codified as Section 91-29-25, Mississippi Code of 1972:
91-29-25. Pre-decree designation of ex-spouse as beneficiary in retirement benefits and other financial plans. (a) If a decree of divorce or annulment is rendered after a spouse, acting in the capacity of a participant, annuitant, or account holder, has designated the other spouse as a beneficiary under an individual retirement account, employee stock option plan, stock option, or other form of savings, bonus, profit-sharing, or other employer plan or financial plan of an employee or a participant in force at the time of rendition, the designating provision in the plan in favor of the other former spouse is not effective unless:
(1) The decree designates the other former spouse as the beneficiary;
(2) The designating former spouse redesignates the other former spouse as the beneficiary after rendition of the decree; or
(3) The other former spouse is designated to receive the proceeds or benefits in trust for, on behalf of, or for the benefit of a child or dependent of either former spouse.
(b) If a designation is not effective under subsection (a), the benefits or proceeds are payable to the named alternative beneficiary or, if there is not a named alternative beneficiary, to the designating former spouse.
(c) A business entity, employer, pension trust, insurer, financial institution, or other person obligated to pay retirement benefits or proceeds of a financial plan covered by this section who pays the benefits or proceeds to the beneficiary under a designation of the other former spouse that is not effective under subsection (a) is liable for payment of the benefits or proceeds to the person provided by subsection (b) only if:
(1) Before payment of the benefits or proceeds to the designated beneficiary, the payor receives written notice at the home office or principal office of the payor from an interested person that the designation of the beneficiary or fiduciary is not effective under subsection (a); and
(2) The payor has not interpleaded the benefits or proceeds into the registry of a court of competent jurisdiction in accordance with the Mississippi Rules of Civil Procedure.
(d) This section does not affect the right of a former spouse to assert an ownership interest in an undivided pension, retirement, annuity, or other financial plan described by this section as provided by this chapter.
(e) This section does not apply to the disposition of a beneficial interest in a retirement benefit or other financial plan of a public retirement system as defined by Section 25-11-101 et seq.
SECTION 33. The following shall be codified as Section 91-25-1, Mississippi Code of 1972:
91-25-1. Short title. This chapter may be cited as the Mississippi Uniform Estate Tax Apportionment Act.
SECTION 34. The following shall be codified as Section 91-25-3, Mississippi Code of 1972:
91-25-3. Definitions. In this chapter:
(1) "Apportionable estate" means the value of the gross estate as finally determined for purposes of the estate tax to be apportioned reduced by:
(A) Any claim or expense allowable as a deduction for purposes of the tax;
(B) The value of any interest in property that, for purposes of the tax, qualifies for a marital or charitable deduction or otherwise is deductible or is exempt; and
(C) Any amount added to the decedent's gross estate because of a gift tax on transfers made before death.
(2) "Chancery court" means the chancery court where the decedent's will is probated in the State of Mississippi.
(3) "Estate tax" means a federal, state, or foreign tax imposed because of the death of an individual and interest and penalties associated with the tax. The term does not include an inheritance tax, income tax, or generation-skipping transfer tax other than a generation-skipping transfer tax incurred on a direct skip taking effect at death.
(4) "Gross estate" means, with respect to an estate tax, all interests in property subject to the tax.
(5) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(6) "Ratable" means apportioned or allocated pro rata according to the relative values of interests to which the term is to be applied. "Ratably" has a corresponding meaning.
(7) "Time-limited interest" means an interest in property which terminates on a lapse of time or on the occurrence or nonoccurrence of an event or which is subject to the exercise of discretion that could transfer a beneficial interest to another person. The term does not include a cotenancy unless the cotenancy itself is a time-limited interest. The term also does not include an interest in property to the extent the beneficiary has the sole right to accelerate, require or elect to receive a distribution of the property.
(8) "Value" means, with respect to an interest in property, fair market value as finally determined for purposes of the estate tax that is to be apportioned, reduced by any outstanding debt secured by the interest without reduction for taxes paid or required to be paid or for any special valuation adjustment.
SECTION 35. The following shall be codified as Section 91-25-5, Mississippi Code of 1972:
91-25-5. Apportionment by will or other dispositive instrument. (a) Except as otherwise provided in subsection (c), the following rules apply:
(1) To the extent that a provision of a decedent's will expressly and unambiguously directs the apportionment of an estate tax, the tax must be apportioned accordingly.
(2) Any portion of an estate tax not apportioned under paragraph (1) must be apportioned in accordance with any provision of a revocable trust of which the decedent was the settlor which expressly and unambiguously directs the apportionment of an estate tax. If conflicting apportionment provisions appear in two (2) or more revocable trust instruments, the provision in the most recently dated instrument prevails. For purposes of this paragraph:
(A) A trust is revocable if it was revocable immediately after the trust instrument was executed, even if the trust subsequently becomes irrevocable; and
(B) The date of an amendment to a revocable trust instrument is the date of the amended instrument only if the amendment contains an apportionment provision.
(3) If any portion of an estate tax is not apportioned under paragraph (1) or (2), and a provision in any other dispositive instrument expressly and unambiguously directs that any interest in the property disposed of by the instrument is or is not to be applied to the payment of the estate tax attributable to the interest disposed of by the instrument, the provision controls the apportionment of the tax to that interest.
(b) Subject to subsection (c), and unless the decedent expressly and unambiguously directs the contrary, the following rules apply:
(1) If an apportionment provision directs that a person receiving an interest in property under an instrument is to be exonerated from the responsibility to pay an estate tax that would otherwise be apportioned to the interest, the tax attributable to the exonerated interest must be apportioned ratably among all the other persons receiving interests in the apportionable estate that are not exonerated from apportionment of the tax.
(2) If an apportionment provision directs that an estate tax is to be apportioned to an interest in property a portion of which qualifies for a marital or charitable deduction, the estate tax must first be apportioned ratably among the holders of the portion that does not qualify for a marital or charitable deduction and then apportioned ratably among the holders of the deductible portion to the extent that the value of the nondeductible portion is insufficient.
(3) Except as otherwise provided in paragraph (4), if an apportionment provision directs that an estate tax be apportioned to property in which one or more time-limited interests exist, other than interests in specified property under Section 91-25-13, the tax must be apportioned to the principal of that property, regardless of the deductibility of some of the interests in that property.
(4) If an apportionment provision directs that an estate tax is to be apportioned to the holders of interests in property in which one or more time-limited interests exist and a charity has an interest that otherwise qualifies for an estate tax charitable deduction, the tax must first be apportioned, to the extent feasible, to interests in property that have not been distributed to the persons entitled to receive the interests. No tax shall be paid from a charitable remainder annuity trust or charitable remainder unitrust described in Section 664 of the Internal Revenue Code (26 U.S.C. Section 664) and created during the decedent's life.
(c) A provision that apportions an estate tax is ineffective to the extent that it increases the tax apportioned to a person having an interest in the gross estate over which the decedent had no power to transfer immediately before the decedent executed the instrument in which the apportionment direction was made. For purposes of this subsection, a testamentary power of appointment is a power to transfer the property that is subject to the power.
SECTION 36. The following shall be codified as Section 91-25-7, Mississippi Code of 1972:
91-25-7. Statutory apportionment of estate taxes. To the extent that apportionment of an estate tax is not controlled by an instrument described in Section 91-25-5 and except as otherwise provided in Sections 91-25-11 and 91-25-13, the following rules apply:
(1) Subject to paragraphs (2), (3) and (4), the estate tax is apportioned ratably to each person that has an interest in the apportionable estate.
(2) A generation-skipping transfer tax incurred on a direct skip taking effect at death is charged to the person to which the interest in property is transferred.
(3) If property is included in the decedent's gross estate because of Section 2044 of the Internal Revenue Code of 1986 or any similar estate tax provision, the difference between the total estate tax for which the decedent's estate is liable and the amount of estate tax for which the decedent's estate would have been liable if the property had not been included in the decedent's gross estate is apportioned ratably among the holders of interests in the property. The balance of the tax, if any, is apportioned ratably to each other person having an interest in the apportionable estate.
(4) Except as otherwise provided in Section 91-25-5(b)(4) and except as to property to which Section 91-25-13 applies, an estate tax apportioned to persons holding interests in property subject to a time-limited interest must be apportioned, without further apportionment, to the principal of that property.
SECTION 37. The following shall be codified as Section 91-25-9, Mississippi Code of 1972:
91-25-9. Credits and deferrals. Except as otherwise provided in Sections 91-25-11 and 91-25-13, the following rules apply to credits and deferrals of estate taxes:
(1) A credit resulting from the payment of gift taxes or from estate taxes paid on property previously taxed inures ratably to the benefit of all persons to which the estate tax is apportioned.
(2) A credit for state or foreign estate taxes inures ratably to the benefit of all persons to which the estate tax is apportioned, except that the amount of a credit for a state or foreign tax paid by a beneficiary of the property on which the state or foreign tax was imposed, directly or by a charge against the property, inures to the benefit of the beneficiary.
(3) If payment of a portion of an estate tax is deferred because of the inclusion in the gross estate of a particular interest in property, the benefit of the deferral inures ratably to the persons to which the estate tax attributable to the interest is apportioned. The burden of any interest charges incurred on a deferral of taxes and the benefit of any tax deduction associated with the accrual or payment of the interest charge is allocated ratably among the persons receiving an interest in the property.
SECTION 38. The following shall be codified as Section 91-25-11, Mississippi Code of 1972:
91-25-11. Insulated property; advancement of tax. (a) In this section:
(1) "Advanced fraction" means a fraction that has as its numerator the amount of the advanced tax and as its denominator the value of the interests in insulated property to which that tax is attributable.
(2) "Advanced tax" means the aggregate amount of estate tax attributable to interests in insulated property which is required to be advanced by uninsulated holders under subsection (c).
(3) "Insulated property" means property subject to a time-limited interest which is included in the apportionable estate but is unavailable for payment of an estate tax because of impossibility or impracticability.
(4) "Uninsulated holder" means a person who has an interest in uninsulated property.
(5) "Uninsulated property" means property included in the apportionable estate other than insulated property.
(b) If an estate tax is to be advanced under subsection (c) by persons holding interests in uninsulated property subject to a time-limited interest other than property to which Section 91-25-13 applies, the tax must be advanced, without further apportionment, from the principal of the uninsulated property.
(c) Subject to Section 91-25-17(b) and (d), an estate tax attributable to interests in insulated property must be advanced ratably by uninsulated holders. If the value of an interest in uninsulated property is less than the amount of estate taxes otherwise required to be advanced by the holder of that interest, the deficiency must be advanced ratably by the persons holding interests in properties that are excluded from the apportionable estate under Section 91-25-3(1)(B) as if those interests were in uninsulated property.
(d) A court having jurisdiction to determine the apportionment of an estate tax may require a beneficiary of an interest in insulated property to pay all or part of the estate tax otherwise apportioned to the interest if the court finds that it would be substantially more equitable for that beneficiary to bear the tax liability personally than for that part of the tax to be advanced by uninsulated holders.
(e) When a distribution of insulated property is made, each uninsulated holder may recover from the distributee a ratable portion of the advanced fraction of the property distributed. To the extent that undistributed insulated property ceases to be insulated, each uninsulated holder may recover from the property a ratable portion of the advanced fraction of the total undistributed property.
(f) Upon payment by an uninsulated holder of estate tax required to be advanced, a court may require the beneficiary of an interest in insulated property to provide a bond or other security, including a recordable lien on the property of the beneficiary, for repayment of the advanced tax.
SECTION 39. The following shall be codified as Section 91-25-13, Mississippi Code of 1972:
91-25-13. Apportionment and recapture of special elective benefits. (a) In this section:
(1) "Special elective benefit" means a reduction in an estate tax obtained by an election for:
(A) A reduced valuation of specified property that is included in the gross estate;
(B) A deduction from the gross estate, other than a marital or charitable deduction, allowed for specified property; or
(C) An exclusion from the gross estate of specified property.
(2) "Specified property" means property for which an election has been made for a special elective benefit.
(b) If an election is made for one or more special elective benefits, an initial apportionment of a hypothetical estate tax must be computed as if no election for any of those benefits had been made. The aggregate reduction in estate tax resulting from all elections made must be allocated among holders of interests in the specified property in the proportion that the amount of deduction, reduced valuation, or exclusion attributable to each holder's interest bears to the aggregate amount of deductions, reduced valuations, and exclusions obtained by the decedent's estate from the elections. If the estate tax initially apportioned to the holder of an interest in specified property is reduced to zero, any excess amount of reduction reduces ratably the estate tax apportioned to other persons that receive interests in the apportionable estate.
(c) An additional estate tax imposed to recapture all or part of a special elective benefit must be charged to the persons that are liable for the additional tax under the law providing for the recapture.
SECTION 40. The following shall be codified as Section 91-25-15, Mississippi Code of 1972:
91-25-15. Securing payment of estate tax from property in possession of fiduciary. (a) A fiduciary may defer a distribution of property until the fiduciary is satisfied that adequate provision for payment of the estate tax has been made.
(b) A fiduciary may withhold from a distributee an amount equal to the amount of estate tax apportioned to an interest of the distributee and the estate tax required to be advanced by the distributee.
(c) As a condition to a distribution, a fiduciary may require the distributee to provide a bond or other security for the portion of the estate tax apportioned to the distributee and also for the estate tax required to be advanced by the distributee.
SECTION 41. The following shall be codified as Section 91-25-17, Mississippi Code of 1972:
91-25-17. Collection of estate tax by fiduciary. (a) A fiduciary responsible for payment of an estate tax may collect from any person the estate tax apportioned to and the tax required to be advanced by the person.
(b) Except as otherwise provided in Section 27-10-61, any estate tax due from a person that cannot be collected from the person may be collected by the fiduciary from other persons in the following order of priority:
(1) Any person having an interest in the apportionable estate which is not exonerated from the tax;
(2) Any other person having an interest in the apportionable estate; or
(3) Any person having an interest in the gross estate.
(c) A domiciliary fiduciary may recover from an ancillary personal representative the estate tax apportioned to the property controlled by the ancillary personal representative.
(d) The total tax collected from a person under this act may not exceed the value of the person's interest.
SECTION 42. The following shall be codified as Section 91-25-19, Mississippi Code of 1972:
91-25-19. Right of reimbursement. (a) A person required under Section 91-25-17 to pay an estate tax greater than the amount due from the person under Section 91-25-5 or 91-25-7 has a right to reimbursement from another person to the extent that the other person has not paid the tax required by Section 91-25-5 or 91-25-7 and a right to reimbursement ratably from other persons to the extent that each has not contributed a portion of the amount collected under Section 91-25-17(b). The right to reimbursement includes the right to receive interest on the amount of the estate tax payment from the date of the payment to the date of reimbursement at the interest rate that would be charged during such period on an estate tax deficiency by the taxing authority that imposed the estate tax. The right of reimbursement also includes the reasonable costs of collection, including attorney's fees.
(b) A fiduciary may enforce the right of reimbursement under subsection (a) on behalf of the person that is entitled to the reimbursement and shall take reasonable steps to do so if requested by the person.
SECTION 43. The following shall be codified as Section 91-25-21, Mississippi Code of 1972:
91-25-21. Action to determine or enforce act. (a) The chancery court has jurisdiction and all power necessary to make the prorations and the orders directing the payment of amounts of tax contemplated by this chapter.
(b) Such jurisdiction may be invoked by petition filed in the chancery court by an executor, administrator, temporary administrator, trustee or other person acting in a fiduciary capacity, transferee, beneficiary of the gross estate, or any other person having such an interest as may in the judgment of the chancery court entitle such person to file such a petition.
(c) The chancery court, upon making a determination as provided in this chapter, shall make a decree or order directing the executor, administrator or other fiduciary to charge the prorated amounts against the persons against whom the tax has been so prorated, insofar as such person is in possession of property or interests of such persons against whom such charge has been made, and summarily directing all other persons against whom the tax has been so prorated or who are in possession of property or interests of such persons to make payment of such prorated amounts to such executor, administrator or other fiduciary or to another person who has paid such tax.
SECTION 44. The following shall be codified as Section 91-25-23, Mississippi Code of 1972:
91-25-23. Uniformity of application and construction. In applying and construing this chapter, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
SECTION 45. The following shall be codified as Section 91-25-25, Mississippi Code of 1972:
91-25-25. Severability. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
SECTION 46. The following shall be codified as Section 91-25-27, Mississippi Code of 1972:
91-25-27. Delayed application. (a) This chapter does not apply to the estate of a decedent who dies on or within one (1) year after the effective date of this act, nor with respect to a decedent who dies more than one (1) year after the effective date of this act, if the decedent continuously lacked testamentary capacity from the expiration of the one-year period until the date of death.
(b) With respect to a decedent who dies on or after the effective date of this act, to whom this chapter does not apply, estate taxes must be apportioned under the law in effect on the day before the effective date of this act.
(c) Notwithstanding the provisions of subsection (a) and (b), this chapter applies with respect to a decedent to whom the provisions would not otherwise apply if the decedent expressly and unambiguously directs that the provisions shall apply to such decedent.
SECTION 47. The following shall be codified as Section 91-7-501 Mississippi Code of 1972:
91-7-501. As used in this act:
(1) "Local administration" means administration by a personal representative appointed in this state pursuant to appointment proceedings.
(2) "Personal representative" means an executor, an administrator with or without the will annexed, or other representative authorized in a court of competent jurisdiction to conduct an estate administration.
(3) "Local personal representative" includes any personal representative appointed in this state by appointment proceedings and excludes foreign personal representatives who acquire the power of a local personal representative under Section 91-7-509.
(4) "Resident creditor" means a person domiciled in, or doing business in this state, who is, or could be, a claimant against an estate of a nonresident decedent.
(5) "Foreign personal representative" means a personal representative appointed by another jurisdiction.
SECTION 48. The following shall be codified as Section 91-7-503, Mississippi Code of 1972:
91-7-503. At any time after the expiration of sixty (60) days from the death of a nonresident decedent, any person indebted to the estate of the nonresident decedent or having possession or control of personal property, or of an instrument evidencing a debt, obligation, stock or chose in action belonging to the estate of the nonresident decedent may pay the debt, deliver the personal property, or the instrument evidencing the debt, obligation, stock or chose in action, to the domiciliary foreign personal representative of the nonresident decedent upon being presented with proof of his appointment, including the admitted will and letters testamentary or letters of administration or substantial equivalent, authenticated under the Acts of Congress under 28 U.S.C.A. Section 1739, and an affidavit made by or on behalf of the personal representative stating:
(1) The date of the death of the nonresident decedent;
(2) That no local administration, or application or petition therefor, is pending in this state; and
(3) That the domiciliary foreign personal representative is entitled to payment or delivery.
SECTION 49. The following shall be codified as Section 91-7-505, Mississippi Code of 1972:
91-7-505. Payment or delivery made in good faith on the basis of the proof of authority, including the admitted will and letters testamentary or letters of administration or substantial equivalent, authenticated under the Acts of Congress under 28 U.S.C.A. Section 1739, and affidavit releases the debtor or person having possession of the personal property to the same extent as if payment or delivery had been made to a local personal representative.
SECTION 50. The following shall be codified as Section 91-7-507, Mississippi Code of 1972:
91-7-507. Payment or delivery under Section 91-7-503 may not be made if a resident creditor of the nonresident decedent has notified the debtor of the nonresident decedent or the person having possession of the personal property belonging to the nonresident decedent that the debt should not be paid nor the property delivered to the domiciliary foreign personal representative.
SECTION 51. The following shall be codified as Section 91-7-509, Mississippi Code of 1972:
91-7-509. If no local administration or application or petition therefor is pending in this state, a domiciliary foreign personal representative may file with a court in this state in a county in which property belonging to the decedent is located, authenticated copies of his appointment, including the admitted will and letters testamentary or letters of administration or substantial equivalent, authenticated under the Acts of Congress under 28 U.S.C.A. Section 1739, and any official bond he has given. A domiciliary foreign personal representative is subject to the estate administration requirements and obligations set forth in Title 91, Chapter 7, Mississippi Code of 1972.
SECTION 52. The following shall be codified as Section 91-7-511, Mississippi Code of 1972:
91-7-511. A domiciliary foreign personal representative who has complied with Section 91-7-509 may exercise as to assets in this state all powers of a local personal representative, and may maintain actions and proceedings in this state subject to any conditions imposed upon nonresident parties generally.
SECTION 53. The following shall be codified as Section 91-7-513, Mississippi Code of 1972:
91-7-513. The power of a domiciliary foreign personal representative under Section 91-7-503 or Section 91-7-511 shall be exercised only if there is no administration or application therefor pending in this state. An application or petition for local administration of the estate terminates the power of the foreign personal representative to act under Section 91-7-509, but the local court may allow the foreign personal representative to exercise limited powers to preserve the estate. A person who, before receiving actual notice of a pending local administration, has changed his position in reliance upon the powers of a foreign personal representative shall not be prejudiced by reason of the application or petition for, or grant of, local administration. The local personal representative is subject to all duties and obligations which have accrued by virtue of the exercise of the powers by the foreign personal representative and may be substituted for him in any action or proceedings in this state.
SECTION 54. The following shall be codified as Section 91-7-515, Mississippi Code of 1972:
91-7-515. In respect to a nonresident decedent, the provisions of this chapter govern:
(1) Proceedings, if any, in a court of this state for probate of the will, appointment, removal, supervision, and discharge of the local personal representative, and any other order concerning the estate; and
(2) The status, powers, duties and liabilities of any local personal representative and the rights of claimants, purchasers, distributees and others in regard to a local administration.
SECTION 55. The following shall be codified as Section 91-7-517, Mississippi Code of 1972:
91-7-517. A foreign personal representative submits personally to the jurisdiction of the courts of this state in any proceeding relating to the estate by: (1) filing authenticated copies of his appointment as provided in Section 91-7-509; or (2) receiving payment of money or taking delivery of personal property under Section 91-7-503; or (3) doing any act as a personal representative in this state that would have given the state jurisdiction over him as an individual. Jurisdiction under paragraph (1) is limited to the money or value of personal property collected.
SECTION 56. The following shall be codified as Section 91-7-519, Mississippi Code of 1972:
91-7-519. In addition to jurisdiction conferred by Section 91-7-515, a foreign personal representative is subject to the jurisdiction of the courts of this state to the same extent that his decedent was subject to jurisdiction immediately before death.
SECTION 57. The following shall be codified as Section 91-7-521, Mississippi Code of 1972:
91-7-521. (a) Service of process may be made upon the foreign personal representative by registered or certified mail, addressed to his last reasonably ascertainable address, requesting a return receipt signed by addressee only. Notice by ordinary first-class mail is sufficient if registered or certified mail service to the addressee is unavailable. Service may be made upon a foreign personal representative in the manner in which service could have been made under other laws of this state on either the foreign personal representative or his decedent immediately before death.
(b) If service is made upon a foreign personal representative as provided in subsection (a), he shall be allowed at least thirty (30) days within which to appear or respond.
SECTION 58. The following shall be codified as Section 91-7-523, Mississippi Code of 1972:
91-7-523. An adjudication rendered in any jurisdiction in favor of or against any foreign personal representative of the estate is as binding on the local personal representative as if he were a party to the adjudication.
SECTION 59. The following shall be codified as Section 91-8-501, Mississippi Code of 1972:
91-8-501. Application of Article 5; rights of beneficiary's creditor or assignee. This Article 5 applies to a creditor's or assignee's claims and ability to reach mandatory, support and discretionary interests regardless of whether such interests are subject to a spendthrift provision. To the extent not otherwise prohibited by this Article 5, the court may authorize a creditor or assignee of the beneficiary to reach the beneficiary's distribution interest by attachment of present or future distributions to or for the benefit of the beneficiary or other means. The court may limit the award to such relief as is appropriate under the circumstances.
SECTION 60. The following shall be codified as Section 91-8-502, Mississippi Code of 1972:
91-8-502. Spendthrift provision. (a) Except as provided in Section 91-8-505, if the trust instrument provides that a beneficiary's interest in a trust is not subject to voluntary or involuntary transfer, the beneficiary's interest in the trust may not be transferred and is not subject to the enforcement of a money judgment until paid to the beneficiary.
(b) A term of a trust providing that the interest of a beneficiary is held subject to a "spendthrift trust," or words of similar import, is sufficient to restrain both voluntary and involuntary transfer of the beneficiary's interest.
(c) A spendthrift provision applies to all beneficial interests, including distribution interests whether with respect to income or principal or both, and remainder interests.
(d) A beneficiary may not transfer an interest in a trust in violation of a valid spendthrift provision, and a creditor or assignee of the beneficiary may not reach the interest or a present, future or prospective distribution by the trustee before its receipt by the beneficiary. Similarly, a creditor or assignee of the beneficiary may not force a distribution from the trust. This subsection (d) remains applicable regardless of the beneficiary's potential right to force a distribution under Section 91-8-814.
(e) Notwithstanding any other provision of this section to the contrary or whether a beneficiary has an outstanding creditor, a trustee, cotrustee, or other fiduciary of a trust subject to a spendthrift provision may directly pay any expense on behalf of the beneficiary and may exhaust the income and principal of the trust for the benefit of the beneficiary. A trustee, cotrustee or other fiduciary is not liable to any creditor for paying the expenses of a beneficiary under a trust subject to a spendthrift provision. This subsection (e) remains applicable whether the beneficiary for whom the direct payment was made held a mandatory, support, discretionary or remainder interest.
SECTION 61. The following shall be codified as Section 91-8-503, Mississippi Code of 1972:
91-8-503. Discretionary interests; effect thereof. (a) A discretionary interest is neither a property interest nor an enforceable right; it is a mere expectancy.
(b) Relative to a discretionary interest, whether or not a trust contains a spendthrift provision:
(1) A creditor or assignee cannot force or otherwise reach a distribution with regard to a discretionary interest;
(2) A creditor or assignee cannot require a trustee, cotrustee or other fiduciary to exercise the trustee's, cotrustee's or other fiduciary's discretion to make a distribution with regard to a discretionary interest;
(3) Whether or not a beneficiary has any outstanding creditors or assignees, a trustee, cotrustee or other fiduciary of a discretionary interest may directly pay any expense on behalf of the beneficiary and may exhaust the income and principal of the trust for the benefit of the beneficiary;
(4) A trustee, cotrustee or other fiduciary is not liable to any creditor or assignee for paying the expenses of a beneficiary of a discretionary interest;
(5) (A) Whether or not a beneficiary holding a discretionary interest is also a trustee, cotrustee or other fiduciary, subsections (b)(1) through (4) remain applicable if:
(i) The beneficiary-fiduciary does not have the discretion to make or participate in making distributions to such beneficiary-fiduciary;
(ii) The beneficiary-fiduciary's discretion to make or participate in making distributions to such beneficiary-fiduciary is limited by an ascertainable standard; or
(iii) The beneficiary-fiduciary's discretion to make or participate in making distributions to such beneficiary-fiduciary is exercisable only with the consent of a cotrustee or another person holding an adverse interest.
(B) A creditor or assignee may compel or otherwise reach a distribution only to the extent the creditor or assignee may compel or otherwise reach a distribution if the beneficiary was not acting as a trustee, cotrustee or other fiduciary.
SECTION 62. The following shall be codified as Section 91-8-504, Mississippi Code of 1972:
91-8-504. Creditors' claims against settlor. (a) Whether or not the terms of a trust contain a spendthrift provision, the following rules apply:
(1) During the lifetime of the settlor, the property of a revocable trust is subject to claims of the settlor's creditors.
(2) Except as provided in the Mississippi Qualified Disposition in Trust Act and subsections (a)(3) through (5) regarding an irrevocable special needs trust, a creditor or assignee of the settlor of an irrevocable trust may reach the maximum amount that can be distributed to or for the settlor's benefit. If a trust has more than one (1) settlor, the amount the creditor or assignee of a particular settlor may reach may not exceed the settlor's interest in the portion of the trust attributable to that settlor's contribution.
(3) For the purposes of this section, "irrevocable special needs trust" means an irrevocable trust established for the benefit of one or more disabled persons, which includes, but is not limited to, an individual who is disabled as defined in 42 U.S.C. Section 1382c(a), as well as an individual who is disabled as defined in any similar federal, state or other jurisdictional law or regulation, or has a condition that is substantially equivalent to one that qualifies the person as disabled under such a provision, even if not officially found to be disabled by a governmental body, if one (1) of the purposes of the trust, expressed in the trust instrument or implied from the trust instrument, is to allow the disabled person to qualify or continue to qualify for public, charitable or private benefits that might otherwise be available to the disabled person. The existence of one or more nondisabled remainder beneficiaries of the trust does not disqualify it as an irrevocable special needs trust for the purposes of this section.
(4) A creditor or assignee of the settlor of an irrevocable special needs trust, as defined in subsection (a)(3), may not reach or compel distributions from the special needs trust, to or for the benefit of the settlor of the special needs trust, or otherwise, whether or not the irrevocable special needs trust complies with, and irrespective of the requirements of, the Mississippi Qualified Disposition in Trust Act.
(5) Notwithstanding any law to the contrary, neither a creditor nor any other person shall have any claim or cause of action against the trustee or other fiduciary, or an advisor of an irrevocable special needs trust. For purposes of this subsection (a)(5), an advisor of an irrevocable special needs trust includes any person involved in the counseling, drafting, preparation, execution or funding of an irrevocable special needs trust.
(6) After the death of a settlor, and subject to the settlor's right to direct the source from which liabilities will be paid, the property of a trust that was revocable immediately preceding the settlor's death is subject to claims of the settlor's creditors, costs of administration of the settlor's estate, and the expenses of the settlor's funeral and disposal of remains subject to the following:
(A) With respect to claims, expenses, and taxes in connection with the settlement of the settlor's estate, any claim of a creditor that would be barred against the fiduciary of a settlor's estate, the estate of the settlor, or any creditor or beneficiary of the settlor's estate shall be barred against the trust property of a trust that was revocable at the settlor's death, the trustee of the revocable trust, and the creditors and beneficiaries of the trust.
(B) Unless a personal representative of the settlor's estate has been appointed or an application or petition for appointment of a personal representative of the settlor's estate is pending, the trustee at any time may give notice to any person the trustee has reason to believe may have a claim against the settlor at death, at the claimant's last known address. The notice shall contain the name and address of the trustee to whom the claim must be presented and provide information that failure to present the claim to the trustee within ninety (90) days of the date of the notice will forever bar the claim. If the person fails to present the claim in writing within ninety (90) days from the date of the notice, then the person is forever barred from asserting or recovering on the claim from the trustee, the trust property and the creditors and beneficiaries of the trust. A person who presents a claim on or before the date specified in the notice may not later increase the claim following the expiration of the ninety-day period.
(C) Unless a personal representative of the settlor's estate has been appointed or an application or petition for appointment of a personal representative of the settlor's estate is pending, a trustee may also publish in some newspaper in the county of the decedent's last residence a notice requiring all persons having unknown claims against the settlor to present their claims to the trustee, which notice shall state that failure to present the claim to the trustee within ninety (90) days of the date after the first publication of the notice will forever bar the claim. The notice must be published for three (3) consecutive weeks, and proof of publication must be maintained with the books and records of the trust. If a person fails to present a claim in writing within ninety (90) days from the date of first publication, that person shall be forever barred from asserting or recovering on the claim from the trustee, the trust property and the creditors and beneficiaries of the trust. A person who presents a claim on or before ninety (90) days from first publication may not later increase the claim following the expiration of the ninety-day period.
(D) In addition to subsection (a)(6)(B) and (a)(6)(C), if a claim is not presented in writing to the personal representative of the settlor's estate or to the trustee: (i) within six (6) months from the date of the appointment of the initial personal representative of the settlor's estate; or (ii) if no personal representative is appointed within six (6) months from the settlor's date of death and a claim is not presented in writing to the trustee within six (6) months from the settlor's date of death, a trustee is not chargeable for any assets that the trustee may pay or distribute in good faith in satisfaction of any lawful claims, expenses, or taxes or to any beneficiary before the claim was presented. A payment or distribution of assets by a trustee is deemed to have been made in good faith unless the creditor can prove that the trustee had actual knowledge of the claim at the time of the payment or distribution. The six-month period shall not be interrupted or affected by the death, resignation, or removal of a trustee, except that the time during which there is no trustee in office shall not be counted as part of the period.
(E) A claim presented to the trustee under subsection (a)(6)(B) or (a)(6)(C) must contain substantially the same information as required in Section 91-7-149.
(F) The provisions of Section 91-7-261 detailing the priority of payment of claims, expenses, and taxes from the probate estate of a decedent apply to a revocable trust to the extent the assets of the settlor's probate estate are inadequate and the personal representative or creditor or taxing authority of the settlor's estate has perfected its right to collect from the settlor's revocable trust.
(G) If a personal representative has been appointed for the settlor's estate, assets of the trust shall abate pari passu with assets of the settlor's estate. If no personal representative has been appointed for the settlor's estate, assets of the trust shall abate in the same order of preference as would apply to a decedent's estate.
(H) Nothing in this paragraph (6) obligates a trustee to seek appointment of a personal representative of a settlor's estate, and a trustee is not liable to any beneficiary or other third party for failure to do so.
(b) For purposes of this section during the period a power of withdrawal may be exercised or upon the lapse, release, or waiver of the power, the holder is treated as the settlor of the trust only to the extent the value of the property affected by the lapse, release, or waiver exceeds the greater of:
(1) The amount specified in Section 2041(b)(2) or 2514(e) of the Internal Revenue Code of 1986 (26 U.S.C. Section 2041(b)(2) and Section 2514(e));
(2) If the donor of the property subject to holder's power of withdrawal is not married at the time of the transfer of property to the trust, the amount specified in Section 2503(b) of the Internal Revenue Code of 1986 (26 U.S.C. Section 2503(b)); or
(3) If the donor of the property subject to holder's power of withdrawal is married at the time of the transfer of property to the trust, twice the amount specified in Section 2503(b) of the Internal Revenue Code of 1986 (26 U.S.C. Section 2503(b)).
(4) A power to withdraw is not considered to exceed the greater of the amounts specified in subsection (b)(1) through (3) if the amount subject to a withdrawal right granted to the holder in any calendar year does not exceed the greater of such amounts even if the total amount subject to the holder's power to withdraw exceeds the greater of such amounts in any subsequent calendar year.
(5) Except to the extent provided in this subsection (b), a person who is the holder of a power of withdrawal is not considered a settlor of the trust by failing to exercise the power of withdrawal, releasing the power of withdrawal, or waiving the power of withdrawal.
(c) For purposes of subsection (a)(2), the following are not considered an amount that may be distributed to or for the settlor's benefit:
(1) The power of a trustee of an irrevocable trust, whether arising under the trust agreement or any other provision of law, to make a distribution to or for the benefit of a settlor for the purpose of reimbursing the settlor in an amount equal to any income taxes payable on any portion of the trust principal and income that are includable in the settlor's personal income under applicable law, as well as distributions made by the trustee under such authority; and
(2) The power of the settlor to exercise any of the powers described in Section 675 of the Internal Revenue Code of 1986 (26 U.S.C. Section 675).
(d) Property contributed to the following trusts is not considered to have been contributed by the settlor, and a person who would otherwise be treated as a settlor or deemed settlor of the following trusts may not be treated as a settlor:
(1) An irrevocable inter vivos marital trust if:
(A) The settlor is a beneficiary of the trust after the death of the settlor's spouse; and
(B) The trust is treated as:
(i) Qualified terminable interest property under Section 2523(f), Internal Revenue Code of 1986; or
(ii) A general power of appointment trust under Section 2523(e), Internal Revenue Code of 1986;
(2) An irrevocable inter vivos trust of which the settlor's spouse is a beneficiary if the settlor is a beneficiary of the trust after the death of the settlor's spouse; or
(3) An irrevocable trust for the benefit of any person to the extent that the property of the trust was subject to a power of appointment in another person, whether the settlor's interest was created by the lapse or exercise of such power.
The effect of this subsection (d) shall be that the power of a trustee, and any benefit resulting to the settlor, whether arising under the trust agreement or any other provision of the law, to make a distribution to or for the benefit of a settlor or to otherwise permit the settlor to use or benefit from trust property following the death of the settlor's spouse, shall not be considered an amount that may be distributed to or for the settlor's benefit for purposes of subsection (a)(2).
(e) A beneficiary is not considered to be a settlor, to have made a voluntary or involuntary transfer of the beneficiary's interest in the trust, or to have the power to make a voluntary or involuntary transfer of the beneficiary's interest in the trust, merely because the beneficiary holds, exercises, waives, releases, or allows to lapse:
(1) A presently exercisable power to:
(A) Consume, invade, appropriate, or distribute property to or for the benefit of the beneficiary, if the power is:
(i) Exercisable only on consent of another person holding an interest adverse to the beneficiary's interest; or
(ii) Limited by an ascertainable standard, including health, education, support, or maintenance of the beneficiary; or
(B) Appoint any property of the trust to or for the benefit of a person other than the beneficiary, a creditor of the beneficiary, the beneficiary's estate, or a creditor of the beneficiary's estate;
(2) A testamentary power of appointment; or
(3) A presently exercisable right described by subsection (b).
(f) For purposes of subsection (a)(2) and subsection (g), a person who becomes a beneficiary of a trust due to the exercise of a power of appointment by someone other than such person shall not be considered a settlor of the trust.
(g) (1) Notwithstanding Section 15-3-115, no person shall bring an action with respect to a transfer of property to a spendthrift trust if the person is a creditor when the transfer is made, unless the action is commenced within the later of two (2) years after the transfer is made or six (6) months after the person discovers or reasonably should have discovered the transfer; and
(2) If subsection (g)(1) applies:
(A) A person is deemed to have discovered the existence of a transfer at the time any public record is made of the transfer, including, but not limited to, a conveyance of real property that is recorded in the office of the county register of deeds of the county in which the property is located or the filing of a financing statement Uniform Commercial Code, or the equivalent recording or filing of either with the appropriate person or official under the laws of a jurisdiction other than this state;
(B) A creditor cannot bring an action with respect to a transfer of property to a spendthrift trust unless that creditor proves by clear and convincing evidence that the settlor's transfer to the trust was made with the intent to defraud that specific creditor; and
(i) Notwithstanding any law to the contrary, a creditor or any other person does not have a claim or cause of action against the trustee, other fiduciary, or an advisor of a spendthrift trust if that claim or cause of action is based in any way on any person making use of the benefits of this subsection (g);
(ii) For purposes of subsection (g)(2)(B), an advisor of a spendthrift trust includes, but is not limited to, any person involved in the counseling, drafting, preparation, execution or funding of a spendthrift trust;
(iii) For purposes of subsection (g)(2)(B)(i), counseling, drafting, preparation, execution or funding of a spendthrift trust includes the counseling, drafting, preparation, execution and funding of a limited partnership, a limited liability company or any other type of entity if interests in the limited partnership, limited liability company or other entity are subsequently transferred to a spendthrift trust;
(3) Notwithstanding subsection (g)(2)(B), in the same manner as provided other than by this section to trusts in general, a beneficiary, settlor, cotrustee, trust advisor or trust protector retains the right to bring a claim against a trustee or against another cotrustee, trust advisor, trust protector or any of their predecessors; however, no such claim shall arise solely because a person used, or attempted to use, the benefits of this subsection (g);
(4) If more than one (1) transfer of property is made to a spendthrift trust, the subsequent transfer of property to the spendthrift trust shall be disregarded for the purpose of determining whether a person may bring an action under this subsection (g) with respect to a prior transfer of property to the spendthrift trust; any distribution to a beneficiary from the spendthrift trust shall be deemed to have been made from the most recent transfer made to the spendthrift trust;
(5) With the exception of a claim brought under subsection (g)(3), notwithstanding any other law, no action of any kind, including, without limitation, an action to enforce a judgment entered by a court or other body having adjudicative authority, shall be brought at law or in equity against the trustee, other fiduciary or advisor of a spendthrift trust if, as of the date the action is brought, an action by a creditor with respect to a transfer of property to the spendthrift trust would be barred under this subsection (g); and
(6) This subsection (g) shall not abridge the rights of a creditor, to the extent otherwise provided by this section, to reach the maximum amount that can be distributed to or for the settlor's benefit under a spendthrift trust.
SECTION 63. The following shall be codified as Section 91-8-505, Mississippi Code of 1972:
91-8-505. Distributions relative to support, mandatory and certain remainder interests. (a) Relative to a support interest, whether or not a trust contains a spendthrift provision:
(1) Although a beneficiary of a support interest has enforceable rights under Section 91-8-814, those rights do not raise the beneficiary's support interest to the level of a property interest;
(2) No creditor or assignee shall reach that support interest until a distribution from the support interest is actually made to the beneficiary;
(3) After all or a portion of a support interest is distributed to the beneficiary, no portion of the distribution made from the support interest shall be reached by a creditor or assignee of the beneficiary except to the extent that the distribution made from the support interest exceeds the amount necessary for the health, education, maintenance and support of the beneficiary who received the distribution made from the support interest;
(4) In the case of a beneficiary who holds a support interest, the use or enjoyment of property belonging to the trust by that beneficiary shall not be transferred and shall not be reached by creditors or assignees of that beneficiary;
(5) Regardless of whether a beneficiary has any outstanding creditors or assignees, a trustee or other fiduciary of a support interest may directly pay any expense on behalf of the beneficiary and may exhaust the income and principal of the trust for the benefit of the beneficiary; and
(6) A trustee or other fiduciary is not liable to any creditor or assignee for paying the expenses of a beneficiary of a support interest.
(b) Relative to a mandatory interest, whether or not a trust contains a spendthrift provision:
(1) While a court may order a trustee or other fiduciary to distribute a past-due mandatory distribution to its beneficiary, no court shall order a trustee or other fiduciary to distribute such past-due mandatory distribution directly to a creditor or assignee;
(2) Regardless of whether a beneficiary has any outstanding creditors or assignees, a trustee or other fiduciary of a mandatory interest may directly pay any expense on behalf of the beneficiary and may exhaust the income and principal of the trust for the benefit of the beneficiary;
(3) A trustee or other fiduciary is not liable to any creditor or assignee for paying the expenses of a beneficiary of a mandatory interest.
(c) Although a remainder interest may be an enforceable right, where it is not absolutely certain based on the language of the trust that the remainder interest will be distributed within one (1) year, it shall not be classified as a property interest. This subsection (c) does not affect eligibility for any public assistance program administered by the Department of Human Services.
SECTION 64. The following shall be codified as Section 91-8-506, Mississippi Code of 1972:
91-8-506. Personal obligations of trustee. Trust property is not subject to personal obligations of the trustee, even if the trustee becomes insolvent or bankrupt.
SECTION 65. The following shall be codified as Section 91-8-507, Mississippi Code of 1972:
91-8-507. Removal or replacement power over trustee or other fiduciary not reachable by holder's creditors; interests of beneficiary who is also a trustee or other fiduciary not reachable. (a) A creditor or assignee of a beneficiary does not have the power to reach an interest of a beneficiary or any other person who holds an unconditional or conditional removal or replacement power over a trustee or other fiduciary. Such power over a trustee or other fiduciary is personal to the holder and shall not be exercised by the holder's creditors. No court shall direct a holder to exercise the power.
(b) Subject to Section 91-8-504(b)(3):
(1) A creditor or assignee of a beneficiary may not reach an interest of a beneficiary who is also a trustee, cotrustee or other fiduciary, or otherwise compel a distribution because the beneficiary is then serving as a trustee, cotrustee or other fiduciary; and
(2) A court may not foreclose against a beneficiary's interest described in subsection (a).
SECTION 66. The following shall be codified as Section 91-8-508, Mississippi Code of 1972:
91-8-508. Judicial foreclosure of beneficial interests, powers of appointment, and reserved powers prohibited; certain reaches prohibited. Regardless of whether a trust contains a spendthrift provision:
(1) No beneficial interest, power of appointment, or reserved power in a trust shall be judicially foreclosed.
(2) Trust property subject to a power of appointment is not subject to the claims of the creditors of the holder of the power of appointment or to any permitted appointee unless and until such trust property is distributed pursuant to the exercise of such power of appointment and then only to the extent of the claims of the creditors of the appointee.
(3) A creditor or an assignee of a beneficiary of a residuary interest in a trust has no interest in trust property until trust property is actually distributed to such assignee of the residuary interest and therefore trust property is not subject to claims of a creditor of the assignee.
(4) A power of appointment is not a property interest.
SECTION 67. The following shall be codified as Section 89-22-1, Mississippi Code of 1972:
89-22-1. Short title. This chapter may be cited as the "Mississippi Uniform Disclaimer of Property Interests Act (2002/2010)."
SECTION 68. The following shall be codified as Section 89-22-3, Mississippi Code of 1972:
89-22-3. Definitions. In this chapter:
(1) "Disclaimant" means the person to whom a disclaimed interest or power would have passed had the disclaimer not been made.
(2) "Disclaimed interest" means the interest that would have passed to the disclaimant had the disclaimer not been made.
(3) "Disclaimer" means the refusal to accept an interest in or power over property.
(4) "Fiduciary" means a personal representative, trustee, agent acting under a power of attorney, or other person authorized to act as a fiduciary with respect to the property of another person.
(5) "Jointly held property" means property held in the name of two (2) or more persons under an arrangement in which all holders have concurrent interests and under which the last-surviving holder is entitled to the whole of the property. Jointly held property does not include property held as tenants by the entirety.
(6) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.
(7) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band or an Alaskan native village that is recognized by federal law or formally acknowledged by a state.
(8) "Trust" means:
(A) An express trust, charitable or noncharitable, with additions thereto, whenever and however created; and
(B) A trust created under a statute, judgment, or decree that requires the trust to be administered in the manner of an express trust.
SECTION 69. The following shall be codified as Section 89-22-5, Mississippi Code of 1972:
89-22-5. Scope. This chapter applies to disclaimers of any interest in or power over property, whenever created.
SECTION 70. The following shall be codified as Section 89-22-7, Mississippi Code of 1972:
89-22-7. Chapter supplemented by other law. (a) Unless displaced by a provision of this chapter, the principles of law and equity supplement this chapter.
(b) This chapter does not limit any right of a person to waive, release, disclaim, or renounce an interest in or power over property under a law other than this chapter.
SECTION 71. The following shall be codified as Section 89-22-9, Mississippi Code of 1972:
89-22-9. Power to disclaim; general requirements; when irrevocable. (a) A person may disclaim, in whole or part, 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.
(b) Except to the extent a fiduciary's right to disclaim is expressly restricted or limited by another statute of this state or by the instrument creating the fiduciary relationship, a fiduciary may disclaim, in whole or part, any interest in or power over property, including a power of appointment, whether acting in a personal or representative capacity. A fiduciary 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, or an instrument other than the instrument that created the fiduciary relationship imposed a restriction or limitation on the right to disclaim.
(c) To the extent there is no material conflict of interest, a parent, as defined in Section 93-15-103(h), can disclaim on behalf of the parent's minor or incapacitated child, if a conservator or guardian has not been appointed for the child.
(d) To be effective, a disclaimer must be in a writing or other record, declare the disclaimer, describe the interest or power disclaimed, be signed by the person making the disclaimer, and be delivered or filed in the manner provided in Section 89-22-25. In this subsection "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(e) 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.
(f) A disclaimer becomes irrevocable when it is delivered or filed under Section 89-22-25 or when it becomes effective as provided in Sections 89-22-11 through 89-22-23 of this chapter, whichever occurs later.
(g) A disclaimer made under this chapter is not a transfer, assignment, or release.
(h) A person obligated to distribute an interest disclaimed under this chapter is not liable to any person for distributing the interest as if the interest were not disclaimed unless the person obligated to distribute the interest receives a copy of the disclaimer before distributing the interest.
SECTION 72. The following shall be codified as Section 89-22-11, Mississippi Code of 1972:
89-22-11. Disclaimer of interest in property. (a) In this section:
(1) "Future interest" means an interest that takes effect in possession or enjoyment, if at all, later than the time of its creation.
(2) "Time of distribution" means the time when a disclaimed interest would have taken effect in possession or enjoyment.
(b) Except for a disclaimer governed by Section 89-22-13, 89-22-15 or 89-22-17, the following rules apply to a disclaimer of an interest in property:
(1) The disclaimer takes effect as of the time the instrument creating the interest becomes irrevocable, or, if the interest arose under the law of intestate succession, as of the time of the intestate's death.
(2) The disclaimed interest passes according to any provision in the instrument creating the interest providing for the disposition of the interest, should it be disclaimed, or of disclaimed interests in general.
(3) If the instrument does not contain a provision described in paragraph (2), the following rules apply:
(A) If the disclaimant is not an individual, the disclaimed interest passes as if the disclaimant did not exist.
(B) If the disclaimant is an individual, except as otherwise provided in subparagraphs (C) and (D), the disclaimed interest passes as if the disclaimant had died immediately before the time of distribution.
(C) If by law or under the instrument, the descendants of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died before the time of distribution, the disclaimed interest passes only to the descendants of the disclaimant who survive the time of distribution.
(D) If the disclaimed interest would pass to the disclaimant's estate had the disclaimant died before the time of distribution, the disclaimed interest instead passes by representation to the descendants of the disclaimant who survive the time of distribution. If no descendant of the disclaimant survives the time of distribution, the disclaimed interest passes to those persons, including the state but excluding the disclaimant, and in such shares as would succeed to the transferor's intestate estate under the intestate succession law of the transferor's domicile had the transferor died at the time of distribution. However, if the transferor's surviving spouse is living but is remarried at the time of distribution, the transferor is deemed to have died unmarried at the time of distribution.
(4) Upon the disclaimer of a preceding interest, a future interest held by a person other than the disclaimant takes effect as if the disclaimant had died or ceased to exist immediately before the time of distribution, but a future interest held by the disclaimant is not accelerated in possession or enjoyment.
SECTION 73. The following shall be codified as Section 89-22-13, Mississippi Code of 1972:
89-22-13. Disclaimer of rights of survivorship in jointly held property. (a) Upon the death of a holder of jointly held property, a surviving holder may disclaim, in whole or in part, the incremental portion of the jointly held property devolving to the surviving holder by right of survivorship.
(b) A disclaimer under subsection (a) of this section takes effect as of the death of the holder of jointly held property to whose death the disclaimer relates.
(c) If a disclaimer is made under subsection (a) of this section with only one (1) holder surviving the death of the holder to whose death the disclaimer relates, the incremental portion disclaimed shall, as a consequence of the disclaimer, pass as part of the estate of the deceased holder.
(d) If a disclaimer is made under subsection (a) of this section with two (2) or more of the holders surviving the death of the holder to whose death the disclaimer relates:
(1) The disclaimer does not sever the joint tenancy with respect to the jointly held property as among the surviving holders;
(2) The incremental portion disclaimed, as a consequence of a disclaimer, devolves to the surviving holders in proportion to their respective interests in the jointly held property excluding the disclaimant and any other surviving holder who disclaims to the extent of his, her or its disclaimer of the incremental portion;
(3) An incremental portion devolving to a surviving holder, as a consequence of one or more disclaimers, may be disclaimed by the surviving holder;
(4) To the extent that all of the surviving holders disclaim an incremental portion devolving to them, the portion shall instead pass as part of the estate of the deceased holder; and
(5) The proportion of each of the surviving holders with respect to the jointly held property shall be adjusted to take into account the devolution of the incremental portion to the extent that the portion is disclaimed.
SECTION 74. The following shall be codified as Section 89-22-15, Mississippi Code of 1972:
89-22-15. Disclaimer of property held as tenants by the entirety. (a) The survivorship interest in property held as a tenancy by the entirety to which the survivor succeeds by operation of law upon the death of the cotenant may be disclaimed as provided in this chapter. For purposes of this chapter only, the deceased tenant's interest in property held as a tenancy by the entirety shall be deemed to be an undivided one-half (1/2) interest.
(b) A disclaimer under subsection (a) takes effect as of the death of the deceased tenant to whose death the disclaimer relates.
(c) The survivorship interest in property held as a tenancy by the entirety disclaimed by the surviving tenant passes as if the disclaimant had predeceased the tenant to whose death the disclaimer relates.
SECTION 75. The following shall be codified as Section 89-22-17, Mississippi Code of 1972:
89-22-17. Disclaimer of interest by trustee. (a) If a trustee disclaims an interest in property that otherwise would have become trust property:
(1) The interest does not become trust property;
(2) The disclaimer:
(A) Takes effect as of the time the trust became irrevocable; and
(B) Relates back for all purposes to the time the trust became irrevocable; and
(3) The disclaimed interest is not subject to the claims of any creditor of the trustee, the trust, or any trust beneficiary.
(b) If the instrument creating the disclaimed interest contains a provision that provides for the disposition of the interest if the interest were to be disclaimed, the disclaimed interest passes according to that provision.
(c) If the instrument creating the disclaimed interest does not contain a provision described by subsection (b), the disclaimed interest passes as if:
(1) All of the current beneficiaries, presumptive remainder beneficiaries, and contingent beneficiaries of the trust affected by the disclaimer who are individuals who died before the trust became irrevocable; and
(2) All beneficiaries of the trust affected by the disclaimer who are not individuals ceased to exist without successor organizations and without substitution of beneficiaries under the cy pres doctrine before the trust became irrevocable.
(d) Subsection (c) applies only for purposes of determining the disposition of an interest in property disclaimed by a trustee that otherwise would have become trust property and applies only with respect to the trust affected by the disclaimer. Subsection (c) does not apply with respect to other trusts governed by the instrument and does not apply for other purposes under the instrument or under the laws of intestacy.
SECTION 76. The following shall be codified as Section 89-22-19, Mississippi Code of 1972:
89-22-19. Disclaimer of power of appointment or other power not held in fiduciary capacity. If a holder disclaims a power of appointment or other power not held in a fiduciary capacity, the following rules apply:
(1) If the holder has not exercised the power, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable.
(2) If the holder has exercised the power and the disclaimer is of a power other than a presently exercisable general power of appointment, the disclaimer takes effect immediately after the last exercise of the power.
(3) The instrument creating the power is construed as if the power expired when the disclaimer became effective.
SECTION 77. The following shall be codified as Section 89-22-21, Mississippi Code of 1972:
89-22-21. Disclaimer by appointee, object, or taker in default of exercise of power of appointment. (a) A disclaimer of an interest in property by an appointee of a power of appointment takes effect as of the time the instrument by which the holder exercises the power becomes irrevocable.
(b) A disclaimer of an interest in property by an object or taker in default of an exercise of a power of appointment takes effect as of the time the instrument creating the power becomes irrevocable.
SECTION 78. The following shall be codified as Section 89-22-23, Mississippi Code of 1972:
89-22-23. Disclaimer of power held in fiduciary capacity. (a) If a fiduciary disclaims a power held in a fiduciary capacity which has not been exercised, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable.
(b) If a fiduciary disclaims a power held in a fiduciary capacity which has been exercised, the disclaimer takes effect immediately after the last exercise of the power.
(c) A disclaimer under this section is effective as to another fiduciary if the disclaimer so provides and the fiduciary disclaiming has the authority to bind the estate, trust, or other person for whom the fiduciary is acting.
SECTION 79. The following shall be codified as Section 89-22-35, Mississippi Code of 1972:
89-22-35. Delivery or filing. (a) In this section, "beneficiary designation" means an instrument, other than an instrument creating a trust, naming the beneficiary of:
(1) An annuity or insurance policy;
(2) An account with a designation for payment on death;
(3) A security registered in beneficiary form;
(4) A pension, profit-sharing, retirement, or other employment-related benefit plan; or
(5) Any other nonprobate transfer at death.
(b) Subject to subsections (c) through (l), delivery of a disclaimer may be effected by personal delivery, first-class mail, or any other method likely to result in its receipt.
(c) In the case of an interest created under the law of intestate succession or an interest created by will, other than an interest in a testamentary trust:
(1) A disclaimer must be delivered to the personal representative of the decedent's estate; or
(2) If no personal representative is then serving, it must be filed with a court having jurisdiction to appoint the personal representative.
(d) In the case of an interest in a testamentary trust:
(1) A disclaimer must be delivered to the trustee then serving, or if no trustee is then serving, to the personal representative of the decedent's estate; or
(2) If no personal representative is then serving, it must be filed with a court having jurisdiction to enforce the trust.
(e) In the case of an interest in an inter vivos trust:
(1) A disclaimer must be delivered to the trustee then serving;
(2) If no trustee is then serving, it must be filed with a court having jurisdiction to enforce the trust; or
(3) If the disclaimer is made before the time the instrument creating the trust becomes irrevocable, it must be delivered to the settlor of a revocable trust or the transferor of the interest.
(f) In the case of an interest created by a beneficiary designation which is disclaimed before the designation becomes irrevocable, the disclaimer must be delivered to the person making the beneficiary designation or to such person's legal representative.
(g) In the case of an interest created by a beneficiary designation which is disclaimed after the designation becomes irrevocable, the disclaimer must be delivered to the person obligated to distribute the interest.
(h) In the case of a disclaimer by a surviving holder of jointly held property or property held as tenants by the entirety, the disclaimer must be delivered to the person to whom the disclaimed interest passes.
(i) In the case of a disclaimer by an object or taker in default of exercise of a power of appointment at any time after the power was created:
(1) The disclaimer must be delivered to the holder of the power or to the fiduciary acting under the instrument that created the power; or
(2) If no fiduciary is then serving, it must be filed with a court having authority to appoint the fiduciary.
(j) In the case of a disclaimer by an appointee of a nonfiduciary power of appointment:
(1) The disclaimer must be delivered to the holder, the personal representative of the holder's estate or to the fiduciary under the instrument that created the power; or
(2) If no fiduciary is then serving, it must be filed with a court having authority to appoint the fiduciary.
(k) In the case of a disclaimer by a fiduciary of a power over a trust or estate, the disclaimer must be delivered as provided in subsection (c), (d) or (e), as if the power disclaimed were an interest in property.
(l) In the case of a disclaimer of a power by an agent, the disclaimer must be delivered to the principal or the principal's representative.
SECTION 80. The following shall be codified as Section 89-22-27, Mississippi Code of 1972:
89-22-27. When disclaimer barred or limited. (a) A disclaimer is barred by a written waiver of the right to disclaim.
(b) A disclaimer of an interest in property is barred if any of the following events occur before the disclaimer becomes effective:
(1) The disclaimant accepts the interest sought to be disclaimed;
(2) The disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers the interest sought to be disclaimed or contracts to do so; or
(3) A judicial sale of the interest sought to be disclaimed occurs.
(c) A disclaimer, in whole or part, of the future exercise of a power held in a fiduciary capacity is not barred by its previous exercise.
(d) A disclaimer, in whole or 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.
(e) A disclaimer is barred or limited if so provided by law other than this chapter.
(f) A disclaimer of a power over property which is barred by this section is ineffective. A disclaimer of an interest in property which is barred by this section takes effect as a transfer of the interest disclaimed to the persons who would have taken the interest under this chapter had the disclaimer not been barred.
SECTION 81. The following shall be codified as Section 89-22-29, Mississippi Code of 1972:
89-22-29. Tax-qualified disclaimer. (a) Notwithstanding any other provision of this chapter, if as a result of a disclaimer or transfer, the disclaimed or transferred interest is treated under the provisions of Title 26 of the United States Code, as now or hereafter amended, or any successor statute thereto, and the regulations promulgated thereunder, as never having been transferred to the disclaimant, then the disclaimer or transfer is effective as a disclaimer under this chapter.
(b) In order for a disclaimer made under the provisions of this chapter to be effective as a tax-qualified disclaimer under the provisions of Title 26 of the United States Code, the disclaimer must satisfy the conditions of Title 26, Section 2518 of the United States Code, as now or hereafter amended, including the requirement that the disclaimer be made generally within nine (9) months from the day the interest being disclaimed was created.
SECTION 82. The following shall be codified as Section 89-22-31, Mississippi Code of 1972:
89-22-31. Recording of disclaimer. (a) A disclaimer of an interest in or relating to real property does not provide constructive notice to all persons unless the disclaimer contains a legal description of the real property to which the disclaimer relates and unless the disclaimer is filed for recording in the office of the chancery clerk of the county or counties where the real property is located.
(b) An effective disclaimer meeting the requirements of subsection (a) constitutes constructive notice to all persons from and after the time of filing.
(c) Failure to file, record, or register the disclaimer does not affect its validity as between the disclaimant and persons to whom the property interest or power passes by reason of the disclaimer.
SECTION 83. The following shall be codified as Section 89-22-33, Mississippi Code of 1972:
89-22-33. Application to existing relationships. Except as otherwise provided in Section 89-22-27, an interest in or power over property existing on the effective date of this chapter as to which the time for delivering or filing a disclaimer under law superseded by this chapter has not expired may be disclaimed after the effective date of this chapter.
SECTION 84. The following shall be codified as Section 89-22-29, Mississippi Code of 1972:
89-22-29. Uniformity of application and construction. In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
SECTION 85. The following shall be codified as Section 89-22-31, Mississippi Code of 1972:
89-22-31. Severability clause. If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
SECTION 86. Section 91-8-105, Mississippi Code of 1972, is amended as follows:
91-8-105. (a) Except as otherwise provided in the terms of the trust, this chapter governs the duties and powers of a trustee or any other fiduciary under this chapter, relations among trustees and such other fiduciaries, and the rights and interests of a beneficiary. The terms of a trust may expand, restrict, eliminate, or otherwise vary the duties and powers of a trustee, any such other fiduciary, relations among any of them, and the rights and interests of a beneficiary; however, nothing contained in this subsection shall be construed to override or nullify the provisions of subsection (b). The rule of statutory construction that statutes in derogation of the common law are to be strictly construed shall have no application to this section. Except as restricted by subsection (b), pursuant to this section, courts shall give maximum effect to the principal of freedom of disposition and to the enforceability of trust instruments.
(b) The terms of a trust prevail over any provision of this chapter except:
(1) The requirements for creating a trust;
(2) The duty of a trustee to act in good faith in accordance with the terms and purposes of the trust and the interests of the beneficiaries;
(3) The requirement that a trust and its terms be for the benefit of its beneficiaries as the interests of such beneficiaries are defined under the terms of the trust, and that the trust have a purpose that is lawful and possible to achieve;
(4) The power of the court to modify or terminate a trust under Sections 91-8-410 through 91-8-416;
(5) The effect of a
spendthrift provision and the rights of certain creditors and assignees to
reach a trust as provided in * * * Article 5 of the Uniform Trust Code (Title 91, Chapter 8,
Article 5, Mississippi Code of 1972);
(6) The power of the court under Section 91-8-702 to require, dispense with, or modify or terminate a bond;
(7) The power of the court under Section 91-8-708(b) to adjust a trustee's compensation specified in the terms of the trust which is unreasonably low or high;
(8) Subject to
subsection (d), the duty under Section 91-8-813(b) to notify beneficiaries of
an irrevocable trust (including anyone who holds a power of appointment) who
have attained twenty-five (25) years of age that the trust has been established
as set forth in * * *
Section 91-8-813(b);
(9) Subject to subsection (d), the duty under Section 91-8-813(a)(1) and (2) to keep the beneficiaries (including anyone who holds a power of appointment) informed and to respond to the request of a beneficiary of an irrevocable trust for trustee's reports and other information reasonably related to the administration of the trust;
(10) The effect of an exculpatory term under Section 91-8-1008;
(11) The rights under Sections 91-8-1010 through 91-8-1013 of a person other than a trustee or beneficiary;
(12) Periods of limitation for commencing a judicial proceeding;
(13) The power of the court to take such action and exercise such jurisdiction as may be necessary in the interests of justice; and
(14) The subject-matter jurisdiction of the court and venue for commencing a proceeding as provided in Sections 91-8-203 and 91-8-204.
(c) Any purpose enunciated as a material purpose of a trust in that trust's trust instrument shall be treated as a material purpose of that trust for all purposes of this chapter.
(d) Notwithstanding subsection (b)(8) and (9) of this section, the duties of a trustee to give notice, information and reports under Section 91-8-813(a) and (b) may be waived or modified in the trust instrument or by the settlor of the trust, or a trust protector or trust advisor that holds the power to so direct, directs otherwise in a writing delivered to the trustee in any of the following ways:
(1) By waiving or modifying such duties as to all qualified beneficiaries during the lifetime of the settlor or the settlor's spouse;
(2) By specifying a different age at which a beneficiary or class of beneficiaries must be notified under Section 91-8-813(b); or
(3) With respect to one or more of the beneficiaries, by designating a beneficiary surrogate to receive such notice, information and reports who will act in good faith to protect the interests of the beneficiary or beneficiaries.
SECTION 87. Sections 27-10-1, 27-10-3, 27-10-5, 27-10-7, 27-10-9, 27-10-11, 27-10-13, 27-10-15, 27-10-17, 27-10-19, 27-10-21, 27-10-23 and 27-10-25, Mississippi Code of 1972, which constitute the Uniform Estate Tax Apportionment Act, are repealed.
SECTION 88. Sections 89-21-1, 89-21-3, 89-21-5, 89-21-7, 89-21-9, 89-21-11, 89-21-13, 89-21-15 and 89-21-17, Mississippi Code of 1972, which constitute the Uniform Disclaimer of Property Interests Act, are repealed.
SECTION 89. Sections 91-9-501, 91-9-503, 91-9-505, 91-9-507, 91-9-509 and 91-9-511, Mississippi Code of 1972, which constitute the Family Trust Preservation Act of 1998, are repealed.
SECTION 90. Section 91-7-259, Mississippi Code of 1972, which provides for foreign fiduciaries and lawsuits and debts, is repealed.
SECTION 91. Sections 91-8-501 through 91-8-508, Mississippi Code of 1972, constitute Article 5 of the Uniform Trust Code.
SECTION 92. This act shall take effect and be in force from and after July 1, 2020.