reglab/statecodes huggingface dataset:
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 14A - Uniform Prudent Management Of Institutional Funds Act › Section 55-14A-4 - Appropriation for expenditure or accumulation of endowment fund--Rules of construction.

55-14A-4. Appropriation for expenditure or accumulation of endowment fund--Rules of construction.
(a) Subject to the intent of a donor expressed in the gift instrument, an institution may appropriate for expenditure or accumulate so much of an endowment fund as the institution determines is prudent for the uses, benefits, purposes, and duration for which the endowment fund is established. Unless stated otherwise in the gift instrument, the assets in an endowment fund are donor-restricted assets until appropriated for expenditure by the institution. In making a determination to appropriate or accumulate, the institution shall act in good faith, with the care that an ordinarily prudent person in a like position would exercise under similar circumstances, and shall consider, if relevant, the following factors:
(1)The duration and preservation of the endowment fund;
(2)The purposes of the institution and the endowment fund;
(3)General economic conditions;
(4)The possible effect of inflation or deflation;
(5)The expected total return from income and the appreciation of investments;
(6)Other resources of the institution; and
(7)The investment policy of the institution.
(b) To limit the authority to appropriate for expenditure or accumulate under subsection (a), a gift instrument must specifically state the limitation.
(c) Terms in a gift instrument designating a gift as an endowment, or a direction or authorization in the gift instrument to use only "income", "interest", "dividends", or "rents, issues, or profits", or "to preserve the principal intact", or words of similar import:
(1)Create an endowment fund of permanent duration unless other language in the gift instrument limits the duration or purpose of the fund; and
(2)Do not otherwise limit the authority to appropriate for expenditure or accumulate under subsection (a).
Source:
SL 2007, ch 283, §4.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 14A - Uniform Prudent Management Of Institutional Funds Act › Section 55-14A-5 - Delegation of management and investment functions.

55-14A-5. Delegation of management and investment functions.
(a) Subject to any specific limitation set forth in a gift instrument or in law other than this chapter, an institution may delegate to an external agent the management and investment of an institutional fund to the extent that an institution could prudently delegate under the circumstances. An institution shall act in good faith, with the care that an ordinarily prudent person in a like position would exercise under similar circumstances, in:
(1)Selecting an agent;
(2)Establishing the scope and terms of the delegation, consistent with the purposes of the institution and the institutional fund; and
(3)Periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the scope and terms of the delegation.
(b) In performing a delegated function, an agent owes a duty to the institution to exercise reasonable care to comply with the scope and terms of the delegation.
(c) An institution that complies with subsection (a) is not liable for the decisions or actions of an agent to which the function was delegated.
(d) By accepting delegation of a management or investment function from an institution that is subject to the laws of this state, an agent submits to the jurisdiction of the courts of this state in all proceedings arising from or related to the delegation or the performance of the delegated function.
(e) An institution may delegate management and investment functions to its committees, officers, or employees as authorized by law of this state other than this chapter.
Source:
SL 2007, ch 283, §5.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 14A - Uniform Prudent Management Of Institutional Funds Act › Section 55-14A-6 - Release or modification of restrictions on management, investment, or purpose.

55-14A-6. Release or modification of restrictions on management, investment, or purpose.
(a) If the donor consents in a record, an institution may release or modify, in whole or in part, a restriction contained in a gift instrument on the management, investment, or purpose of an institutional fund. A release or modification may not allow a fund to be used for a purpose other than a charitable purpose of the institution.
(b) The court, upon application of an institution, may modify a restriction contained in a gift instrument regarding the management or investment of an institutional fund if the restriction has become impracticable or wasteful, if it impairs the management or investment of the fund, or if, because of circumstances not anticipated by the donor, a modification of a restriction will further the purposes of the fund. To the extent practicable, any modification must be made in accordance with the donor's probable intention.
(c) If a particular charitable purpose or a restriction contained in a gift instrument on the use of an institutional fund becomes unlawful, impracticable, impossible to achieve, or wasteful, the court, upon application of an institution, may modify the purpose of the fund or the restriction on the use of the fund in a manner consistent with the charitable purposes expressed in the gift instrument.
(d) If an institution determines that a restriction contained in a gift instrument on the management, investment, or purpose of an institutional fund is unlawful, impracticable, impossible to achieve, or wasteful, the institution may release or modify the restriction, in whole or part, if:
(1)The institutional fund subject to the restriction has a total value of less than twenty-five thousand dollars;
(2)More than twenty years have elapsed since the fund was established; and
(3)The institution uses the property in a manner consistent with the charitable purposes expressed in the gift instrument.
Source:
SL 2007, ch 283, §6.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 14A - Uniform Prudent Management Of Institutional Funds Act › Section 55-14A-7 - Reviewing compliance.

55-14A-7. Reviewing compliance.
Compliance with this chapter is determined in light of the facts and circumstances existing at the time a decision is made or action is taken, and not by hindsight.
Source:
SL 2007, ch 283, §7.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 14A - Uniform Prudent Management Of Institutional Funds Act › Section 55-14A-8 - Application to existing institutional funds.

55-14A-8. Application to existing institutional funds.
This chapter applies to institutional funds existing on or established after July 1, 2007. As applied to institutional funds existing on July 1, 2007, this chapter governs only decisions made or actions taken on or after that date. This chapter does not apply to any funds directly held or managed by a governmental agency.
Source:
SL 2007, ch 283, §8.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 14A - Uniform Prudent Management Of Institutional Funds Act › Section 55-14A-9 - Relation to Electronic Signatures in Global and National Commerce Act.

55-14A-9.Relation to Electronic Signatures in Global and National Commerce Act.
This chapter modifies, limits, and supersedes the 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 of that act, 15 U. S.C. Section 7001(a), or authorize electronic delivery of any of the notices described in Section 103 of that act, 15 U.S. C. Section 7003(b).
Source:
SL 2007, ch 283, §9.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 14A - Uniform Prudent Management Of Institutional Funds Act › Section 55-14A-10 - Uniformity of application and construction.

55-14A-10. Uniformity of application and construction.
In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
Source:
SL 2007, ch 283, §10.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 15 - Total Return Unitrusts › Section 55-15-2 - Trustee's authority to convert income trust, total return unitrust--Calculate trust amount, value--Conditions.

55-15-2. Trustee's authority to convert income trust, total return unitrust--Calculate trust amount, value--Conditions.
A trustee, other than an interested trustee, or, if two or more persons are acting as trustee, a majority of the trustees who are not an interested trustee (in either case hereafter "trustee"), may, in its sole discretion and without the approval of any court, (i) convert an income trust to a total return unitrust, (ii) reconvert a total return unitrust to an income trust, or (iii) change the percentage used to calculate the unitrust amount and the method used to determine the fair market value of the trust if:
(1)The trustee adopts a written policy for the trust providing (i) in the case of a trust being administered as an income trust, that future distributions from the trust will be unitrust amounts rather than net income, (ii) in the case of a trust being administered as a total return unitrust, that future distributions from the trust will be net income rather than unitrust amounts, or (iii) that the percentage used to calculate the unitrust amount or the method used to determine the fair market value of the trust will be changed as stated in the policy;
(2)The trustee sends written notice of its intention to take such action, along with copies of such written policy and this chapter, to (i) the trustor, if living, (ii) all living persons who are currently receiving or eligible to receive distributions of income of the trust, (iii) all living persons who would receive principal of the trust if the trust were to terminate at the time of the giving of such notice (without regard to the exercise of any power of appointment) or, if the trust does not provide for its termination, all living persons who would receive or be eligible to receive distributions of income or principal of the trust if the persons identified in subclause (ii) of this subdivision were deceased, and (iv) all persons acting as adviser or protector of the trust;
(3)At least one person receiving notice under each of subclauses (ii) and (iii) of subdivision (2) is, to the best information and belief of the trustee, legally competent; and
(4)No person receiving such notice objects, by written instrument delivered to the trustee, to the proposed action of the trustee within sixty days of receipt of such notice.
Source:
SL 2002, ch 225, §2.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 15 - Total Return Unitrusts › Section 55-15-3 - Interested trustee's authority over actions enumerated in §55-15-2--Conditions.

55-15-3. Interested trustee's authority over actions enumerated in §55-15-2--Conditions.
If there is no trustee of the trust other than an interested trustee, the interested trustee or, if two or more persons are acting as trustee and are interested trustees, a majority of such interested trustees, may, in its sole discretion and without the approval of any court, take such action as provided in §55-15-2 so long as the trustee appoints a disinterested person who, in its sole discretion but acting in a fiduciary capacity, determines for the trustee (i) the percentage to be used to calculate the unitrust amount, (ii) the method to be used in determining the fair market value of the trust, and (iii) which assets, if any, are to be excluded in determining the unitrust amount; and complies with all of the provisions of subdivisions (1) to (4), inclusive, of §55-15-2.
Source:
SL 2002, ch 225, §3.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 15 - Total Return Unitrusts › Section 55-15-4 - Trustee may petition court--Appointment of disinterested person.

55-15-4. Trustee may petition court--Appointment of disinterested person.
If any trustee desires to (i) convert an income trust to a total return unitrust, (ii) reconvert a total return unitrust to an income trust, or (iii) change the percentage used to calculate the unitrust amount and the method used to determine the fair market value of the trust but does not have the ability to or elects not to do it under the provisions of §§55-15-2 and 55-15-3, or in the event the trustee receives a written objection within the applicable period, the trustee may petition the court for such order as the trustee deems appropriate. In the event, however, there is only one trustee of such trust and such trustee is an interested trustee or in the event there are two or more trustees of such trust and a majority of them are interested trustees, the court, in its own discretion or on the petition of such trustee or trustees or any person interested in the trust, may appoint a disinterested person who, acting in a fiduciary capacity, shall present such information to the court as shall be necessary to enable the court to make its determination.
Source:
SL 2002, ch 225, §4.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 15 - Total Return Unitrusts › Section 55-15-5 - Annual valuation of trust required.

55-15-5. Annual valuation of trust required.
The fair market value of the trust shall be determined at least annually, using such valuation date or dates or averages of valuation dates as are deemed appropriate. Assets for which a fair market value cannot be readily ascertained shall be valued using such valuation methods as are deemed reasonable and appropriate. Such assets may be excluded from valuation, if all income received with respect to such assets is distributed to the extent distributable in accordance with the terms of the governing instrument.
Source:
SL 2002, ch 225, §5.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 15 - Total Return Unitrusts › Section 55-15-8 - Unitrust amount as net income of trust--Allocation of capital gains to trust income.

55-15-8. Unitrust amount as net income of trust--Allocation of capital gains to trust income.
Following the conversion of an income trust to a total return unitrust, the trustee:
(1)Shall treat the unitrust amount as the net income of the trust for purposes of determining the amount available, from time to time, for distributions from the trust; and
(2)May allocate to trust income for each taxable year of the trust (or portions thereof):
(a)Net short-term capital gain described in 26 U.S.C. §1222(5), as amended and in effect on January 1, 2023, for such year (or portion thereof) but only to the extent that the amounts so allocated together with all other amounts allocate to trust income for such year (or portion thereof) does not exceed the unitrust amount for such year (or portion thereof); and
(b)Net long-term capital gain described in 26 U.S.C. §1222(7), as amended and in effect on January 1, 2023, for such year (or portion thereof) but only to the extent that the amount so allocated together with all other amounts, including amounts described in subsection (a) above, allocated to trust income for such year (or portion thereof) does not exceed the unitrust amount for such year (or portion thereof).
Source: SL 2002, ch 225, §8; SL 2023, ch 161, §13.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 15 - Total Return Unitrusts › Section 55-15-9 - Administration of total return unitrust--Authority of trustee.

55-15-9. Administration of total return unitrust--Authority of trustee.
In administering a total return unitrust, the trustee may, in its sole discretion but subject to the provisions of the governing instrument, determine:
(1)The effective date of the conversion;
(2)The timing of distributions during the year, if any, including provisions for prorating distributions for a short year when the effective date of a conversion takes place during the year;
(3)Whether distributions are to be made in cash or in kind or partly in cash and partly in kind;
(4)If the trust is reconverted to an income trust, the effective date of such reconversion; and
(5)Such other administrative issues as may be necessary or appropriate to carry out the purposes of this chapter.
Source: SL 2002, ch 225, §9; SL 2023, ch 161, §14.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 15 - Total Return Unitrusts › Section 55-15-10 - Distributions of principal and standards for income distributions not affected by conversion.

55-15-10. Distributions of principal and standards for income distributions not affected by conversion.
Conversion to a total return unitrust under the provisions of this chapter does not affect any other provisions of the governing instrument, if any, regarding distributions of principal or the standards for distributions of income.
Source: SL 2002, ch 225, §10; SL 2023, ch 161, §15.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 15 - Total Return Unitrusts › Section 55-15-11 - Spouse may compel reconversion to income trust for certain trusts--Written instrument required.

55-15-11. Spouse may compel reconversion to income trust for certain trusts--Written instrument required.
In the case of a trust for which a marital deduction has been taken for federal tax purpose under I.R.C. section 2056 or 2523, the spouse otherwise entitled to receive the net income of the trust has the right, by written instrument delivered to the trustee, to compel the reconversion during his or her lifetime of the trust from a total return unitrust to an income trust, notwithstanding anything in this chapter to the contrary.
Source:
SL 2002, ch 225, §11.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 15 - Total Return Unitrusts › Section 55-15-12 - Applicability of chapter.

55-15-12.Applicability of chapter.
This chapter shall be construed as pertaining to the administration of a trust and shall be available to any trust that is administered in South Dakota under South Dakota law unless (i) the governing instrument reflects an intention that the current beneficiary or beneficiaries are to receive an amount other than a reasonable current return from the trust, ii) the trust is a trust described in I.R.C. section 170(f)(2)(B), 6664(d), 1361(d), 2702(a)(3), or 2702(b), (iii) one or more persons to whom the trustee could distribute income have a power of withdrawal over the trust that is not subject to an ascertainable standard under I.R. C. section 2041 or 2514 or that can be exercised to discharge a duty of support he or she possesses, or (iv) the governing instrument expressly prohibits use of this chapter by specific reference to the chapter. A provision in the governing instrument that "The provisions of this chapter, or any corresponding provision of future law, may not be used in the administration of this trust" or similar words reflecting such intent are sufficient to preclude use of this chapter.
Source:
SL 2002, ch 225, §12.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 15 - Total Return Unitrusts › Section 55-15-13 - Trustee acting in good faith not liable--Remedy.

55-15-13. Trustee acting in good faith not liable--Remedy.
Any trustee or disinterested person who in good faith takes or fails to take any action under this chapter is not liable to any person affected by such action or inaction, regardless of whether such person received written notice as provided in this chapter and regardless of whether such person was under a legal disability at the time of the delivery of such notice. Such person's exclusive remedy shall be to obtain an order of the court directing the trustee to convert an income trust to a total return unitrust, to reconvert from a total return unitrust to an income trust or to change the percentage used to calculate the unitrust amount.
Source:
SL 2002, ch 225, §13.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 15 - Total Return Unitrusts › Section 55-15-14 - No duty to act created.

55-15-14. No duty to act created.
Nothing in this chapter is intended to create or imply a duty to take any action under this chapter, and no trustee is liable for not considering whether to take any action or for choosing not to take any such action.
Source:
SL 2002, ch 225, §14.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 15 - Total Return Unitrusts › Section 55-15-15 - Chapter not applicable to charitable remainder unitrust.

55-15-15.Chapter not applicable to charitable remainder unitrust.
This chapter does not apply to a charitable remainder unitrust as defined by §664(d) of the Internal Revenue Code of 1986 (26 U.S. C. §664), as of January 1, 2009.
Source:
SL 2009, ch 252, §38.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 16 - Qualified Dispositions In Trust › Section 55-16-1 - Definitions.

55-16-1. Definitions.
Terms used in this chapter mean:
(1)"Claim," a right to payment, whether or not the right is reduced to judgment liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured;
(2)"Creditor," with respect to a transferor, a person who has a claim;
(3)"Debt," liability on a claim;
(4)"Disposition," a transfer, conveyance, or assignment of property, including a change in the legal ownership of property occurring upon the substitution of one trustee for another or the addition of one or more new trustees, or the exercise of a power so as to cause a transfer of property to a trustee or trustees. The term does not include the release or relinquishment of an interest in property that theretofore was the subject of a qualified disposition;
(5)"Property," real property, personal property, and interests in real or personal property;
(6)"Qualified disposition," a disposition by or from a transferor to a qualified person or qualified persons, without consideration or for less than fair market value, by means of a trust instrument;
(7)"Spouse" and "former spouse," only persons to whom the transferor was married at, or before, the time the qualified disposition is made;
(8)"Transferor," any person as an owner of property; as a holder of a power of appointment which authorizes the holder to appoint in favor of the holder, the holder's creditors, the holder's estate, or the creditors of the holder's estate; or as a trustee, directly or indirectly, makes a disposition or causes a disposition to be made.
The terms, transferor and beneficiary, may be any person as defined in subdivision 55-4-1(2).
Source:
SL 2005, ch 261, §1; SL 2015, ch 240, §20; SL 2018, ch 275, §28.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 16 - Qualified Dispositions In Trust › Section 55-16-3 - Qualified person defined.

55-16-3. Qualified person defined.
For the purposes of this chapter, a qualified person is any person who qualifies as a qualified person under §55-3-41 and who meets all the requirements of §55-3-39 other than the transferor.
Source:
SL 2005, ch 261, §3; SL 2009, ch 252, §42.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 16 - Qualified Dispositions In Trust › Section 55-16-4 - Persons and entities not to be considered qualified person--Appointment, removal, or replacement of co-trustee, trust advisor, or trust protector.

55-16-4. Persons and entities not to be considered qualified person--Appointment, removal, or replacement of co-trustee, trust advisor, or trust protector.
Neither the transferor nor any other natural person who is a nonresident of this state nor an entity that is not authorized by the law of this state to act as a trustee or whose activities are not subject to supervision as provided in §55-16-3 may be considered a qualified person. However, nothing in this chapter precludes a transferor from appointing, removing, or replacing one or more co-trustees, trust advisors, or trust protectors, regardless of whether or not such trust advisor or trust protector is a fiduciary.
Source:
SL 2005, ch 261, §4; SL 2006, ch 243, §5; SL 2011, ch 212, §6.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 16 - Qualified Dispositions In Trust › Section 55-16-5 - Service as investment trust advisor--Service as fiduciary by transferor.

55-16-5. Service as investment trust advisor--Service as fiduciary by transferor.
Any person may serve as an investment trust advisor, as defined in subdivision 55-1B-1(6), notwithstanding that the person is the transferor of the qualified disposition, but a transferor may not otherwise serve as a fiduciary under a trust instrument except as stated in subdivision 55-16-2(2). While serving as an investment trust advisor of the trust, the person may have all powers authorized by statute or by the trust instrument, including the power to vote by proxy any stock owned by the trust.
Source:
SL 2005, ch 261, §5; SL 2006, ch 243, §6; SL 2010, ch 232, §28; SL 2012, ch 233, §15; SL 2019, ch 209, §8; SL 2020, ch 206, § 17.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 16 - Qualified Dispositions In Trust › Section 55-16-6 - Successor qualified person.

55-16-6. Successor qualified person.
If a qualified person of a trust ceases to meet the requirements of §55-16-3, and there remains no trustee that meets such requirements, such qualified person shall be deemed to have resigned as of the time of such cessation, and thereupon the successor qualified person provided for in the trust instrument shall become a qualified person of the trust, or in the absence of any successor qualified person provided for in the trust instrument, the circuit court shall, upon application of any interested party, appoint a successor qualified person.
Source:
SL 2005, ch 261, §6.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 16 - Qualified Dispositions In Trust › Section 55-16-7 - Disposition to more than one trustee--Qualified disposition even if all trustees are not qualified persons.

55-16-7. Disposition to more than one trustee--Qualified disposition even if all trustees are not qualified persons.
In the case of a disposition to more than one trustee, a disposition that is otherwise a qualified disposition may not be treated as other than a qualified disposition solely because not all of the trustees are qualified persons.
Source:
SL 2005, ch 261, §7.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 16 - Qualified Dispositions In Trust › Section 55-16-8 - Powers and rights of transferor--Effect on qualified disposition.

55-16-8. Powers and rights of transferor--Effect on qualified disposition.
A qualified disposition is subject to §§55-16-9 to 55-16-14, inclusive, notwithstanding a transferor's retention of any or all of the powers and rights described in subdivision 55-16-2(2) and the transferor's service as trust advisor pursuant to §55-16-5. The transferor has only such powers and rights as are conferred by the trust instrument. Except as permitted by §§55-16-2 and 55-16-5, a transferor has no rights or authority with respect to the property that is the subject of a qualified disposition or the income therefrom, and any agreement or understanding purporting to grant or permit the retention of any greater rights or authority is void.
Source:
SL 2005, ch 261, §8.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 16 - Qualified Dispositions In Trust › Section 55-16-9 - Creditors' actions limited to transfers with intent to defraud.

55-16-9. Creditors' actions limited to transfers with intent to defraud.
Notwithstanding any other provision of law, including chapter 54-8A, no action of any kind, including an action to enforce a judgment entered by a court or other body having adjudicative authority, may be brought at law or in equity for an attachment or other provisional remedy against property that is the subject of a qualified disposition or for avoidance of a qualified disposition unless the settlor's transfer of property was made with the intent to defraud that specific creditor. In the event of any conflict between any provision of this chapter and any provision of chapter 54-8A or any other provision of law similar to any provision of chapter 54-8A, the provisions of this chapter control and prevail.
Source:
SL 2005, ch 261, §9; SL 2008, ch 257, §16; SL 2014, ch 226, §21.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 16 - Qualified Dispositions In Trust › Section 55-16-10 - Requirements for bringing claim for fraudulent transfer of settlor's assets.

55-16-10. Requirements for bringing claim for fraudulent transfer of settlor's assets.
A cause of action or claim for relief with respect to a fraudulent transfer of a settlor's assets under §55-16-9 is extinguished unless the action under §55-16-9 is brought by a creditor of the settlor who meets one of the following requirements:
(1)Is a creditor of the settlor before the settlor's assets are transferred to the trust, and the action under §55-16-9 is brought within the later of:
(a)Two years after the transfer is made; or
(b)Six months after the transfer is or reasonably could have been discovered by the creditor if the creditor:
(i)Can demonstrate that the creditor asserted a specific claim against the settlor before the transfer; or
(ii)Files another action, other than an action under §55-16-9, against the settlor that asserts a claim based on an act or omission of the settlor that occurred before the transfer, and the action described in this sub-subsection is filed within two years after the transfer;
(2)Becomes a creditor subsequent to the transfer into trust, and the action under §55-16-9 is brought within two years after the transfer is made;
(3)In any action described in §55-16-9, the burden to prove the matter by clear and convincing evidence is upon the creditor;
(4)A person is deemed to have discovered a transfer at the time a public record of the transfer is made, including the conveyance of an interest in real property that is recorded in the appropriate public filing office where the property is located, the filing of a financing statement pursuant to chapter 57A-9, or the filing of a bill of sale or other transfer instrument regarding personal property; or
(5)The filing of a bill of sale or other transfer instrument which conveys personal property to a trust which is governed by this chapter shall be filed in the applicable public filing office determined as follows:
(a)If the transferor is a natural person and is a resident of this state, the personal property transfer instrument shall be recorded in the county in this state where the transferor maintains the transferor's principal residence; and
(b)In all other cases, the personal property transfer instrument shall be recorded in the county in this state where the trustee of the trust maintains a principal residence or principal place of business.
This section and §§55-16-9, 55-16-11 to 55-16-13, inclusive, are inseparably interwoven with substantive rights that a deprivation of legal rights would result if another jurisdiction's laws and regulations to the contrary are applied to a claim or cause of action described therein.
Source:
SL 2005, ch 261, §10; SL 2008, ch 257, §17; SL 2012, ch 233, §16; SL 2016, ch 231, §24; SL 2017, ch 204, §22.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 16 - Qualified Dispositions In Trust › Section 55-16-11 - Disposition by transferor who is a trustee--Time of disposition.

55-16-11. Disposition by transferor who is a trustee--Time of disposition.
A qualified disposition that is made by means of a disposition by a transferor who is a trustee is deemed to have been made as of the time, whether before, on, or after July 1, 2005, the property that is the subject of the qualified disposition was originally transferred to the transferor, or any predecessor trustee, making the qualified disposition in a form that meets the requirements of subdivisions 55-16-2(2) and (3). Further, the provisions of this section apply to determine the date the transfer is deemed to have been made, notwithstanding that the original transfer was to a trust originally within or outside of the jurisdiction of South Dakota.
If property transferred to a spendthrift trust is conveyed to the settlor or to a beneficiary for the purpose of obtaining a loan secured by a mortgage or deed of trust on the property and then reconveyed to the trust within one hundred eighty days of recording the mortgage or deed of trust, for purposes of subdivision 55-16-10(1), the transfer is disregarded and the reconveyance relates back to the date the property was originally transferred to the trust. The mortgage or deed of trust on the property is enforceable against the trust.
Source:
SL 2005, ch 261, §11; SL 2012, ch 233, §17; SL 2016, ch 231, §25.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 16 - Qualified Dispositions In Trust › Section 55-16-12 - Creditor or other person--Rights with respect to a qualified disposition--Action against trustee, advisor, or trust preparer prohibited.

55-16-12. Creditor or other person--Rights with respect to a qualified disposition--Action against trustee, advisor, or trust preparer prohibited.
Notwithstanding any law to the contrary, a creditor, including a creditor whose claim arose before or after a qualified disposition, or any other person has only such rights with respect to a qualified disposition as are provided in §§55-16-9 to 55-16-16, inclusive, and no such creditor nor any other person has any claim or cause of action against the trustee, or advisor, described in §55-16-4, of a trust that is the subject of a qualified disposition, or against any person involved in the counseling, drafting, preparation, execution, or funding of a trust that is the subject of a qualified disposition. In addition to the provisions of §55-1-43, at no time is a qualified person, as defined in §55-16-3, personally liable to a creditor of a transferor or any other person for distributions made by the qualified person, before the creditor or person notified the qualified person, in writing, that a claim or cause of action existed. This applies regardless of whether the distributions are made to or for the benefit of the transferor or a beneficiary during the period in which a creditor or other person could make a claim as provided in §55-16-10.
Source:
SL 2005, ch 261, §12; SL 2012, ch 233, §18.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 16 - Qualified Dispositions In Trust › Section 55-16-13 - Action against trustee, advisor, or preparer of trust prohibited if action by creditor would be barred--Jurisdiction--Attorneys' fees and costs.

55-16-13. Action against trustee, advisor, or preparer of trust prohibited if action by creditor would be barred--Jurisdiction--Attorneys' fees and costs.
Notwithstanding any other provision of law, no action of any kind, including an action to enforce a judgment entered by a court or other body having adjudicative authority, may be brought at law or in equity against the trustee, or advisor described in §55-16-4, of a trust that is the subject of a qualified disposition, or against any person involved in the counseling, drafting, preparation, execution, or funding of a trust that is the subject of a qualified disposition, if, as of the date such action is brought, an action by a creditor with respect to such qualified disposition would be barred under §§55-16-9 to 55-16-12, inclusive. A court of this state has exclusive jurisdiction over an action brought under a claim for relief that is based on a transfer of property to a trust that is the subject of this section. A court of this state may award attorneys' fees and costs to the prevailing party in such an action. In any action described in this section, the burden to prove the matter by clear and convincing evidence is upon the creditor.
Source:
SL 2005, ch 261, §13; SL 2007, ch 247, §12; SL 2009, ch 252, §44; SL 2016, ch 231, §26.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 16 - Qualified Dispositions In Trust › Section 55-16-14 - Multiple qualified dispositions in same trust instrument.

55-16-14. Multiple qualified dispositions in same trust instrument.
If more than one qualified disposition is made by means of the same trust instrument:
(1)The making of a subsequent qualified disposition shall be disregarded in determining whether a creditor's claim with respect to a prior qualified disposition is extinguished as provided in §55-16-10; and
(2)Any distribution to a beneficiary is deemed to have been made from the latest such qualified disposition.
Source:
SL 2005, ch 261, §14.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 16 - Qualified Dispositions In Trust › Section 55-16-16 - Avoidance of qualified disposition.

55-16-16. Avoidance of qualified disposition.
A qualified disposition is avoided only to the extent necessary to satisfy the transferor's debt to the creditor at whose instance the disposition had been avoided, together with such costs, including attorney's fees, as the court may allow. If any qualified disposition is avoided as provided in this section, then:
(1)If the court is satisfied that a qualified person has not acted in bad faith in accepting or administering the property that is the subject of the qualified disposition:
(a)Such qualified person has a first and paramount lien against the property that is the subject of the qualified disposition in an amount equal to the entire cost, including attorney's fees, properly incurred by such qualified person in the defense of the action or proceedings to avoid the qualified disposition. It is presumed that such qualified person did not act in bad faith merely by accepting such property; and
(b)The qualified disposition is avoided subject to the proper fees, costs, preexisting rights, claims, and interests of such qualified person, and of any predecessor qualified person that has not acted in bad faith; and
(2)If the court is satisfied that a beneficiary of a trust has not acted in bad faith, the avoidance of the qualified disposition is subject to the right of such beneficiary to retain any distribution made upon the exercise of a trust power or discretion vested in the qualified person or qualified persons of such trust, which power or discretion was properly exercised prior to the creditor's commencement of an action to avoid the qualified disposition. It is presumed that the beneficiary, including a beneficiary who is also a transferor of the trust, did not act in bad faith merely by creating the trust or by accepting a distribution made in accordance with the terms of the trust.
Source:
SL 2005, ch 261, §16.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 17 - Special Spousal Trusts › Section 55-17-1 - Arrangement qualifying as special spousal trust.

55-17-1. Arrangement qualifying as special spousal trust.
An arrangement is a South Dakota special spousal trust if one or both spouses in a marriage transfer property to a trust, the trust expressly declares that some or all the property transferred is South Dakota special spousal property as provided in this chapter, and at least one trustee is a qualified person. A South Dakota special spousal trust is enforceable without consideration. Both spouses or either spouse may be a trustee. The trust must be signed by both spouses. The trust may be revocable or irrevocable.
For purposes of this section, a qualified person is any person who meets the requirements of §§55-3-41 and 55-3-39, but without regard to whether that person is the transferor.
Source:
SL 2016, ch 231, §29.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 17 - Special Spousal Trusts › Section 55-17-2 - Required language.

55-17-2. Required language.
A South Dakota special spousal trust shall contain the following language in capital letters at the beginning of the trust:
THE CONSEQUENCES OF THIS TRUST MAY BE VERY EXTENSIVE, INCLUDING YOUR RIGHTS WITH RESPECT TO CREDITORS AND OTHER THIRD PARTIES, AND YOUR RIGHTS WITH YOUR SPOUSE BOTH DURING THE COURSE OF YOUR MARRIAGE, AT THE TIME OF A DIVORCE, AND AT THE DEATH OF YOU OR YOUR SPOUSE. ACCORDINGLY, THIS TRUST AGREEMENT SHOULD ONLY BE SIGNED AFTER CAREFUL CONSIDERATION. IF YOU HAVE ANY QUESTIONS ABOUT THIS TRUST AGREEMENT, YOU SHOULD SEEK INDEPENDENT LEGAL ADVICE.
Source:
SL 2016, ch 231, §30.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 17 - Special Spousal Trusts › Section 55-17-3 - Classification of property--Interest of each spouse.

55-17-3. Classification of property--Interest of each spouse.
Spouses may classify all or any of their property as special spousal property by transferring property to a South Dakota special spousal trust established pursuant to this chapter, and by expressly declaring in the trust that the property is community property. Unless there is a specific provision in the governing instrument stating otherwise, each spouse's respective interest in the special spousal property is fifty percent.
Source:
SL 2016, ch 231, §31; SL 2018, ch 275, §29.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 17 - Special Spousal Trusts › Section 55-17-4 - Amendment and revocation.

55-17-4. Amendment and revocation.
A South Dakota special spousal trust may not be amended or revoked unless the trust agreement provides for amendment or revocation, or unless the trust agreement is amended or revoked by a later South Dakota special spousal trust. To amend or revoke the trust, the later South Dakota special spousal trust is not required to declare any property held by the trustee as special spousal property. The amended trust or the revocation is enforceable without consideration. However, notwithstanding the other provisions of this chapter, unless the South Dakota special spousal trust expressly provides otherwise, at any time after the death of the first spouse the surviving spouse may amend the South Dakota special spousal trust with regard to the surviving spouse's property to be disposed of at the surviving spouse's death. For purposes of this section, the term, surviving spouse's property, means the property that consists of the surviving spouse's property that is not South Dakota special spousal property and the surviving spouse's share of the special spousal property determined as of the date of the first spouse's death.
Source:
SL 2016, ch 231, §32.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 17 - Special Spousal Trusts › Section 55-17-5 - Application of Internal Revenue Code--Special spousal property defined--Community property classified by another jurisdiction.

55-17-5. Application of Internal Revenue Code--Special spousal property defined--Community property classified by another jurisdiction.
For purposes of the application of §1014(b)(6) of the Internal Revenue Code of 1986, 26 U.S.C. §1014(b)(6), as of January 1, 2016, a South Dakota special spousal trust is considered a trust established under the community property laws of South Dakota. For purposes of this chapter, the term, special spousal property, means community property for those purposes. Community property as classified by a jurisdiction other than South Dakota transferred to a South Dakota special spousal trust retains its character as community property while in the trust. If the trust is revoked and property is transferred on revocation of the trust, the community property as classified by a jurisdiction other than South Dakota retains its character as community property to the extent otherwise provided by South Dakota law.
Source:
SL 2016, ch 231, §33.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 17 - Special Spousal Trusts › Section 55-17-6 - Qualified disposition in trust.

55-17-6. Qualified disposition in trust.
A transfer to a South Dakota special spousal trust may also be a qualified disposition in trust if the transfer complies with the provisions of chapter 55-16.
Source:
SL 2016, ch 231, §34.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 17 - Special Spousal Trusts › Section 55-17-7 - Types of transfers to special spousal trust.

55-17-7. Types of transfers to special spousal trust.
In addition to other transfers of property to a South Dakota special spousal trust, property is considered transferred to a South Dakota special spousal trust if the property is subject to a nonprobate transfer on death under an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature and the South Dakota special spousal trust is designated as a beneficiary to receive the property under the transfer. The property is considered the surviving spouse's property that is not South Dakota special spousal property.
Source:
SL 2016, ch 231, §35.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 17 - Special Spousal Trusts › Section 55-17-8 - Records.

55-17-8. Records.
The trustee of a South Dakota special spousal trust shall maintain records that identify which property held by the trust is South Dakota special spousal property and which property held by the trust is not South Dakota special spousal property.
Source:
SL 2016, ch 231, §36.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 17 - Special Spousal Trusts › Section 55-17-9 - Matters upon which spouses may agree.

55-17-9. Matters upon which spouses may agree.
Except as provided in §§55-17-10 and 55-17-11, in a South Dakota special spousal trust, spouses may agree on:
(1)The rights and obligations in the property transferred to the trust, notwithstanding when and where the property is acquired or located;
(2)The management and control of the property transferred to the trust;
(3)The disposition of the property transferred to the trust on dissolution, death, or the occurrence or nonoccurrence of another event; if there is no provision in the governing instrument on disposition of the property transferred to the trust on dissolution, South Dakota law on disposition of property on dissolution applies;
(4)The choice of law governing the interpretation of the trust; and
(5)Any other matter that affects the property transferred to the trust and does not violate public policy or a statute imposing a criminal penalty.
Source:
SL 2016, ch 231, §37; SL 2018, ch 275, §30.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 17 - Special Spousal Trusts › Section 55-17-10 - Right of child to support.

55-17-10. Right of child to support.
Notwithstanding anything contained in §55-17-9 to the contrary, a South Dakota special spousal trust may not adversely affect the right of a child to support.
Source:
SL 2016, ch 231, §38.
2023 South Dakota Codified Laws › Title 55 - Fiduciaries and Trusts › Chapter 17 - Special Spousal Trusts › Section 55-17-11 - Creditor rights--Good faith between spouses.

55-17-11. Creditor rights--Good faith between spouses.
Notwithstanding anything contained in §55-17-9 to the contrary:
(1)A provision of a revocable South Dakota special spousal property trust does not adversely affect the interest of a creditor unless the creditor has actual knowledge of the trust when the obligation to the creditor is incurred. The interest of a creditor in an irrevocable South Dakota special spousal property trust may be subject to the rights and liabilities of a creditor with respect to transfers under chapter 55-16 as provided in §55-17-6;
(2)A spouse shall act in good faith with respect to the other spouse in matters involving South Dakota special spousal property. The obligation under and effect of this section may not be varied by a South Dakota special spousal property trust.
Source:
SL 2016, ch 231, §39.