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;

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(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.