55-17-14. Unenforceable trusts.

A South Dakota special spousal trust executed during marriage is not enforceable if the spouse against whom enforcement is sought proves that:

(1)    The trust was unconscionable when made;

(2)    The spouse against whom enforcement is sought did not execute the South Dakota special spousal trust agreement voluntarily; or

(3)    Before execution of the South Dakota special spousal trust agreement, the spouse against whom enforcement is sought:

(a)    Was not given a fair and reasonable disclosure of the property and financial obligations of the other spouse;

(b)    Did not voluntarily sign a written waiver expressly waiving right to disclosure of the property and financial obligations of the other spouse beyond the disclosure provided; and

(c)    Did not have notice of the property or financial obligations of the other spouse.

Whether a South Dakota special spousal trust is unconscionable is determined by a court as a matter of law.

Source: SL 2016, ch 231, § 42.