2011 South Dakota Code
Title 55 FIDUCIARIES AND TRUSTS
Chapter 01. Classification And Creation Of Trusts
§55-1-43 Discretionary interests.

55-1-43. Discretionary interests. The following provisions apply only to discretionary interests:

(1) A discretionary interest is neither a property interest nor an enforceable right. It is a mere expectancy;

(2) No creditor may force a distribution with regard to a discretionary interest. No creditor may require the trustee to exercise the trustee's discretion to make a distribution with regard to a discretionary interest;

(3) A court may review a trustee's distribution discretion only if the trustee:

(a) Acts dishonestly;

(b) Acts with an improper motive; or

(c) Fails, if under a duty to do so, to act.
A reasonableness standard may not be applied to the exercise of discretion by the trustee with regard to a discretionary interest. Other than for the three circumstances listed in this subdivision, a court has no jurisdiction to review the trustee's discretion or to force a distribution.

Absent express language to the contrary, in the event that the distribution language in a discretionary interest permits unequal distributions between beneficiaries or distributions to the exclusion of other beneficiaries, the trustee may distribute all of the accumulated, accrued, or undistributed income and principal to one beneficiary in the trustee's discretion.

Regardless of whether a beneficiary has any outstanding creditor, a trustee of a discretionary interest may directly pay any expense on behalf of such beneficiary and may exhaust the income and principal of the trust for the benefit of such beneficiary. No trustee is liable to any creditor for paying the expenses of a beneficiary of a discretionary interest.

Source: SL 2007, ch 280, § 20; SL 2009, ch 252, § 11.