South Dakota Codified Laws 29A-2-801. Disclaimer of property interest
(a) Any person who may be entitled to receive any property or beneficial interest, vested or otherwise, under any will of or by intestate succession from a decedent, or as a surviving joint tenant of a decedent, or under the terms of an inter vivos trust or other lifetime transfer, or as the beneficiary of any life insurance policy, of any retirement plan or of any other contract, shall have the right to disclaim irrevocably the whole or any part of such property or beneficial interest.
(b) If a disclaimer of an interest receivable under a will or by intestate succession is made in writing and filed with the clerk of the court in which the estate is or was pending, (i) if of a present interest, not later than nine months after the date of death of the testator or intestate from whom such interest is receivable, then that disclaimer is retroactive to the decedent’s death and the interest so disclaimed passes as if the person disclaiming had predeceased the decedent, and (ii) if of a future interest, not later than nine months after the event determining that the taker is finally ascertained and the taker’s interest is indefeasibly vested, then that disclaimer is retroactive to the determining event and the disclaimed interest passes as if the person disclaiming had predeceased that event.
Terms Used In South Dakota Codified Laws 29A-2-801
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Contract: A legal written agreement that becomes binding when signed.
- Decedent: A deceased person.
- Donee: The recipient of a gift.
- Donor: The person who makes a gift.
- Inter vivos: Transfer of property from one living person to another living person.
- Intestate: Dying without leaving a will.
- Joint tenancy: A form of property ownership in which two or more parties hold an undivided interest in the same property that was conveyed under the same instrument at the same time. A joint tenant can sell his (her) interest but not dispose of it by will. Upon the death of a joint tenant, his (her) undivided interest is distributed among the surviving joint tenants.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Person: includes natural persons, partnerships, associations, cooperative corporations, limited liability companies, and corporations. See South Dakota Codified Laws 2-14-2
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Property: includes property, real and personal. See South Dakota Codified Laws 2-14-2
- Testator: A male person who leaves a will at death.
- Trustee: A person or institution holding and administering property in trust.
- written: include typewriting and typewritten, printing and printed, except in the case of signatures, and where the words are used by way of contrast to typewriting and printing. See South Dakota Codified Laws 2-14-2
(c) If a disclaimer of an interest receivable by the surviving joint tenant of a decedent is made in writing and filed with the clerk of the court in which the joint tenancy or estate proceeding is pending not later than nine months after the decedent’s death, then that disclaimer is retroactive to the decedent’s death and the joint interest so disclaimed passes as if the surviving joint tenant had predeceased the decedent.
(d) If the disclaimer of an interest receivable as beneficiary of a life insurance policy, of a retirement plan, or of any other contract is made in writing and filed with the clerk of the court in which the estate is pending, or if no estate is pending, with the insurer, employer, or other issuer of the contract, not later than nine months after the date of death of the decedent from whom such interest is receivable, then that disclaimer is retroactive to the decedent’s death and the interest so disclaimed passes in the same manner as if the person disclaiming had predeceased the decedent.
(e) If the disclaimer of an interest receivable under an inter vivos trust or lifetime transfer is made in writing and delivered to the then acting trustee of the trust or to the donor or the personal representative of the donor’s estate, (i) if of a present interest, not later than nine months after the day on which the transfer creating the interest in the donee was made, then that disclaimer is retroactive to the date of the creation of the interest and the interest so disclaimed passes as if the person so disclaiming had predeceased the creation of the interest, and (ii) if of a future interest, not later than nine months after the event determining that the taker is finally ascertained and the taker’s interest is indefeasibly vested, then that disclaimer is retroactive to the determining event and the disclaimed interest passes as if the person disclaiming had predeceased that event.
(f) The time for making a disclaimer shall not in any case expire until nine months after the day on which the person entitled to make the disclaimer attains the age of twenty–one.
(g) Nothing in this section shall prevent a testator from providing in a will or a settlor from providing in a trust for the making of disclaimers and for the disposition of disclaimed property in a manner different from the provisions hereof.
(h) The right and means provided in this section for the making of a disclaimer are not exclusive but are in addition to every other right and means of a person to make a disclaimer. Nothing in this section shall prevent the making of a disclaimer in any lawful manner.
(i) A disclaimer not made within the time limits prescribed by this section shall be construed as an assignment of the interest disclaimed to the persons who would be entitled to take had the disclaimer been timely made.
(j) The right and procedure provided in this section for the making of a disclaimer is available to and exercisable by a conservator, a personal representative, a trustee, or an agent acting on a person’s behalf within the authority of a power of attorney. A disclaimer by a conservator shall be subject to the requirements of § 29A-5-420. A disclaimer by a personal representative shall be exercised in the best interests of the estate and only following entry of an appropriate order by the court having jurisdiction. A disclaimer by a trustee shall be exercised in the best interests of the trust estate.
(k) The right to disclaim property or an interest therein is barred by, and any attempted disclaimer shall be invalidated by:
(1) An assignment, conveyance, encumbrance, pledge, or transfer of property or interest, or a contract therefor;
(2) A written waiver of the right to disclaim;
(3) An acceptance of the property or interest or benefit thereunder; or
(4) A sale of the property or interest under judicial sale made before the disclaimer is effected. The right to disclaim exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction. The disclaimer or the written waiver of the right to disclaim is binding on the disclaimant or person waiving and all persons claiming through or under the disclaimant or person waiving.
(l) Whenever a disclaimer affects any interest in real estate, a certified copy of the disclaimer may be recorded at anytime in the office of the register of deeds in each county wherein any such real estate is located. Failure to so record such a disclaimer does not affect the validity of the disclaimer.
Source: SL 1995, ch 167, § 2-801; SL 1999, ch 144, § 1; SL 2002, ch 100, § 3.