Renunciation And Disclaimer of Property from Will by Testate
Disclaimer of Property Interest-South Dakota
South Dakota Codified Laws
TITLE 29A - UNIFORM PROBATE CODE
Part 8 - General provisions concerning probate and nonprobate transfers
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.
(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, 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.
(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;
(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.
Title 29A, Part 8, §29A-2-801.
