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.