55-1-36. Satisfaction of claims of settlor's creditors from trust estate if settlor is beneficiary.
If a settlor is also a beneficiary of the trust, and the transfer is a qualified transfer pursuant to chapter 55-16, the provisions of §§55-1-24 to 55-1-43, inclusive, also apply. Conversely, if the settlor is a beneficiary of the trust and the transfer is not a qualified transfer pursuant to chapter 55-16, a provision restraining the voluntary or involuntary transfer of the settlor's beneficial interest does not prevent the settlor's creditors from satisfying claims from the settlor's interest in the trust estate. However, a settlor's creditors may not satisfy their respective claims from an irrevocable trust if:
(1)The settlor has retained a beneficial interest that is contingent upon surviving the settlor's spouse such as an interest in an inter vivos marital deduction trust in which the interest of the settlor's spouse is treated as qualified terminable interest property under §2523(f) of the Internal Revenue Code of 1986 (26 U.S.C. §2523(f)), as amended, an interest in an inter vivos marital deduction trust that is treated as a general power of appointment trust for which a marital deduction would be allowed under §2523(a) and (e) of the Internal Revenue Code of 1986 (26 U.S.C. §2523(a) and (e)), as amended, and an interest in an inter vivos trust commonly known as a credit shelter trust that used all or a portion of the settlor's unified credit under §2505 of the Internal Revenue Code (26 U.S.C. §2505), as amended;
(2)The settlor may be named, by someone other than the settlor, as an additional beneficiary or from a class of persons that includes the settlor; or
(3)The settlor is a permissible object of the exercise of a power of appointment over trust property held by someone other than the settlor.
Source: SL 2007, ch 280, §13; SL 2011, ch 212, §35; SL 2015, ch 240, §12; SL 2020, ch 206, § 4.
Structure South Dakota Codified Laws
Title 55 - Fiduciaries and Trusts
Chapter 01 - Classification And Creation Of Trusts
Section 55-1-1 - Purposes for which trust may be created.
Section 55-1-2 - Trusts classified.
Section 55-1-3 - Express trust defined.
Section 55-1-4 - Creation of express trust--Words or acts of trustor.
Section 55-1-5 - Express trust created as to trustee--Words and acts of trustee.
Section 55-1-5.1 - Express trust need not be for exclusive benefit of beneficiaries.
Section 55-1-6 - Implied trust--Definition--Creation.
Section 55-1-7 - Wrongful detention creates implied trust.
Section 55-1-8 - Implied trust resulting from fraud, accident or wrongful act.
Section 55-1-9 - Implied trust created by transfer of property in violation of trust.
Section 55-1-10 - Transfer of real property to one for money paid by another--Trust presumed.
Section 55-1-11 - Implied trust--Declaration by court of equity.
Section 55-1-12 - Trustor, trustee, beneficiary, power of appointment, and person defined.
Section 55-1-13 - Voluntary trustee--Assumption of relationship.
Section 55-1-14 - Interest in existing trust--Transfer by operation of law or written instrument.
Section 55-1-15 - Certain trusts not terminated upon trustor's death.
Section 55-1-20 - Trusts for noncharitable purposes.
Section 55-1-21.1 - Termination of trust for care of animal.
Section 55-1-21.4 - Enforcement of purpose of trust by enforcer.
Section 55-1-21.5 - Removal of enforcer.
Section 55-1-21.6 - Discretion of trustee of purpose trust.
Section 55-1-21.8 - Distribution of property upon termination of purpose of trust.
Section 55-1-21.10 - Trustee may not use principal and income other than for trust's purposes.
Section 55-1-22 - Hybrid purpose trusts valid.
Section 55-1-22.2 - Beneficiaries' share of a hybrid purpose trust.
Section 55-1-22.3 - Spendthrift provision in hybrid purpose trust--Qualified dispositions in trust.
Section 55-1-22.4 - Application of §§ 55-1-21 to 55-1-21.9 to hybrid purpose trust--Exceptions.
Section 55-1-22.5 - Discretion of trustee of hybrid purpose trust.
Section 55-1-22.6 - Enforcer of hybrid purpose trust.
Section 55-1-24 - Definitions applicable to §§ 55-1-24 to 55-1-45.
Section 55-1-24.1 - Improper motive.
Section 55-1-24.2 - Withdrawal power.
Section 55-1-27 - Certain remainder interests not property interests.
Section 55-1-28 - Interest of beneficiary or others not reachable by creditors.
Section 55-1-29 - Trust property not subject to personal obligations of trustee.
Section 55-1-30 - Distribution and remainder interests not relevant to division of marital property.
Section 55-1-32 - Factors which are not dominion and control over trust.
Section 55-1-37 - Application of spendthrift provision.
Section 55-1-38 - Classification of distribution interest.
Section 55-1-38.1 - Classification of interest as support interest.
Section 55-1-39 - Bifurcation of trust.
Section 55-1-40 - Language resulting in classification of distribution interest.
Section 55-1-41 - Effect of spendthrift provision.
Section 55-1-42 - Mandatory or support interests.
Section 55-1-43 - Discretionary interests.
Section 55-1-45 - Limitation of action for fraudulent transfer of settlor's assets.
Section 55-1-46 - No contest clause defined--Enforceability.
Section 55-1-48 - Circumstances under which no contest clause unenforceable.
Section 55-1-49 - Contest regarding settlor's signature.
Section 55-1-50 - Attorneys fees and costs.
Section 55-1-51 - Applicability of §§ 55-1-46 to 55-1-50.
Section 55-1-52 - Interest on general pecuniary devises.
Section 55-1-54 - Arbitration.
Section 55-1-55 - Trust enforceable although not funded or without res, corpus, or assets.
Section 55-1-56 - Registration of trust in court at principal place of administration.
Section 55-1-57 - Contents of registration statement.