Disclaimer and Renunciation of Interest (Qualified Disclaimer) — South Dakota

TIMING — IRC § 2518 (9-MONTH DEADLINE): To qualify as a federal "qualified disclaimer," this writing must be signed and delivered/filed within nine (9) months after the date of the decedent's death or other transfer (or within 9 months after the disclaimant turns 21), with no acceptance of the interest or its benefits. South Dakota (SDCL § 29A-2-801) likewise requires the disclaimer within nine (9) months of the death or determining event; the period never expires until nine (9) months after the disclaimant attains age 21. A disclaimer not timely made is construed as an assignment of the interest (§ 29A-2-801(i)). Verify the deadline with counsel before signing.

DISCLAIMER AND RENUNCIATION OF INTEREST (QUALIFIED DISCLAIMER)

STATE OF SOUTH DAKOTA

TABLE OF CONTENTS

1. Disclaimant Information
2. Identification of the Transfer and Interest Disclaimed
3. Statutory Authority
4. The Disclaimer
5. Qualified-Disclaimer Representations
6. Effect and Passing of the Disclaimed Interest
7. Irrevocability and Binding Effect
8. Filing, Delivery, and Recording
9. Signature, Acknowledgment, and Notarization
10. Verification / Declaration
11. Certificate of Delivery / Service
12. Attachments Checklist

1. DISCLAIMANT INFORMATION

The undersigned (the "Disclaimant") is a person who may be entitled to receive property or a beneficial interest within the meaning of SDCL § 29A-2-801(a), namely a(n): ☐ devisee under a will ☐ heir / person taking by intestate succession ☐ surviving joint tenant of the Decedent ☐ beneficiary of an inter vivos trust or other lifetime transfer ☐ beneficiary of a life insurance policy ☐ beneficiary of a retirement plan ☐ beneficiary of any other contract ☐ other: [____________________].

2. IDENTIFICATION OF THE TRANSFER AND INTEREST DISCLAIMED

Source of the interest (check all that apply):
☐ Last Will and Testament of the Decedent
☐ Intestate succession (SDCL ch. 29A-2)
☐ Inter vivos trust or other lifetime transfer
☐ Life insurance policy
☐ Retirement plan or other contract
☐ Joint tenancy with right of survivorship
☐ Other: [________________________________]

Extent of the disclaimer:
☐ Full disclaimer — the Disclaimant disclaims the entire interest described above.
☐ Partial disclaimer — the Disclaimant disclaims only the following fractional, percentage, or pecuniary portion (a person may disclaim the whole or any part under § 29A-2-801(a)): [____________________] (e.g., an undivided ____% interest, or the sum of $[____________]).

Legal description of any real property disclaimed (or see attached Exhibit A): [________________________________]

Type of interest: ☐ Present interest ☐ Future interest (passing on a later determining event under § 29A-2-801(b)(ii)/(e)(ii))

3. STATUTORY AUTHORITY

This Disclaimer is made under SDCL § 29A-2-801 (South Dakota Uniform Probate Code) and is intended to constitute a qualified disclaimer under 26 U.S.C. § 2518 and Treas. Reg. § 25.2518-2.

• SDCL § 29A-2-801(a) grants any person entitled to receive property or a beneficial interest, vested or otherwise, under a will, by intestate succession, as surviving joint tenant, under an inter vivos trust or other lifetime transfer, or as the beneficiary of a life insurance policy, retirement plan, or other contract, the right to disclaim irrevocably the whole or any part of that interest.
• SDCL § 29A-2-801(b)–(e) prescribe the writing, the place of filing or delivery, and the nine-month deadline for each type of interest (see Sections 6 and 8).
• SDCL § 29A-2-801(f) provides that the time to disclaim never expires until nine months after the Disclaimant attains age 21, and § 29A-2-801(i) provides that a disclaimer not made within the statutory time is construed as an assignment of the interest.
• The means provided in § 29A-2-801 are not exclusive (§ 29A-2-801(h)); nothing prevents making the disclaimer in any other lawful manner.

4. THE DISCLAIMER

The Disclaimant, intending to be legally bound, hereby IRREVOCABLY DISCLAIMS and RENOUNCES all (or, where a partial disclaimer is elected in Section 2, the stated fractional, percentage, or pecuniary part of all) right, title, claim, and interest of every kind — whether vested or contingent, present or future, legal or equitable — in and to the property and beneficial interest described in Section 2 above.

This Disclaimer is made freely, voluntarily, and with full knowledge of its legal and tax consequences.

5. QUALIFIED-DISCLAIMER REPRESENTATIONS

The Disclaimant represents and certifies that:

☐ This Disclaimer is in writing and signed by the Disclaimant, and describes the interest disclaimed, as required by SDCL § 29A-2-801 and Treas. Reg. § 25.2518-2(b).

☐ This Disclaimer is being filed or delivered within nine (9) months after the later of (a) the date of the Decedent's death, the date of the transfer creating the interest, or the determining event for a future interest, or (b) the date the Disclaimant attained age 21 (SDCL § 29A-2-801(b)–(f); 26 U.S.C. § 2518(b)(2)).

☐ The Disclaimant has NOT accepted the disclaimed interest or any of its benefits, and has not assigned, conveyed, encumbered, pledged, transferred, or contracted to transfer the interest (Treas. Reg. § 25.2518-2(d)).

☐ The disclaimed interest passes without any direction on the part of the Disclaimant (26 U.S.C. § 2518(b)(4); Treas. Reg. § 25.2518-2(e)).

☐ As a result of this Disclaimer, the interest is retroactive to the Decedent's death, the date of transfer, or the determining event, and passes as if the Disclaimant had predeceased that date/event (SDCL § 29A-2-801(b)–(e)).

6. EFFECT AND PASSING OF THE DISCLAIMED INTEREST

Under SDCL § 29A-2-801, a timely disclaimer is retroactive to the Decedent's death, the date the transfer creating the interest was made, or the determining event (for a future interest), as applicable, and the disclaimed interest passes as if the person disclaiming had predeceased the Decedent or that event:

• Will or intestacy — retroactive to the Decedent's death (present interest) or the determining event (future interest) (§ 29A-2-801(b)).
• Surviving joint tenant — retroactive to the Decedent's death; the joint interest passes as if the surviving joint tenant had predeceased the Decedent (§ 29A-2-801(c)).
• Life insurance, retirement plan, or other contract — retroactive to the Decedent's death (§ 29A-2-801(d)).
• Inter vivos trust or lifetime transfer — retroactive to the creation of the interest (present interest) or the determining event (future interest) (§ 29A-2-801(e)).

The Disclaimant does not direct to whom the disclaimed interest passes; it passes solely by operation of the governing instrument and South Dakota law. Nothing herein prevents a testator or settlor from providing for a different disposition of disclaimed property (§ 29A-2-801(g)).

7. IRREVOCABILITY AND BINDING EFFECT

The right exercised by this Disclaimer is, by statute, to disclaim irrevocably (SDCL § 29A-2-801(a)). This Disclaimer may not be modified, withdrawn, or rescinded once filed or delivered, and it is binding upon the Disclaimant and all persons claiming through or under the Disclaimant.

8. FILING, DELIVERY, AND RECORDING

Pursuant to SDCL § 29A-2-801, the Disclaimant shall (check all that apply):

☐ File this Disclaimer in writing with the Clerk of the Circuit Court of [____________] County, South Dakota, in which the Decedent's estate is or was pending (interest receivable under a will or by intestate succession) (§ 29A-2-801(b)).

☐ File this Disclaimer with the Clerk of the Circuit Court in which the joint tenancy or estate proceeding is pending (disclaimer by a surviving joint tenant) (§ 29A-2-801(c)).

☐ File this Disclaimer with the Clerk of the Circuit Court in which the estate is pending; or, if no estate is pending, deliver it to the insurer, employer, or other issuer of the contract (interest as beneficiary of a life insurance policy, retirement plan, or other contract) (§ 29A-2-801(d)).

☐ Deliver this Disclaimer to the then-acting trustee, or to the donor or the personal representative of the donor's estate (interest under an inter vivos trust or lifetime transfer) (§ 29A-2-801(e)).

☐ Record a copy of this Disclaimer in the Office of the Register of Deeds of [____________] County, South Dakota, where any disclaimed real property is located, to provide notice to subsequent purchasers and lienholders.

9. SIGNATURE, ACKNOWLEDGMENT, AND NOTARIZATION

Executed this [____] day of [____________], 20[____].

Disclaimant Signature: ______________________________________

Printed Name: [________________________________]

ACKNOWLEDGMENT

STATE OF SOUTH DAKOTA )
COUNTY OF [____________] )

On this [____] day of [____________], 20[____], before me, the undersigned officer, personally appeared [DISCLAIMANT FULL LEGAL NAME], known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing instrument, and acknowledged that he/she executed the same as his/her free act and deed.

______________________________________
Notary Public — State of South Dakota
My commission expires: [__/__/____]

[NOTARY SEAL]

10. VERIFICATION / DECLARATION

I, [DISCLAIMANT FULL LEGAL NAME], declare under penalty of perjury under the laws of the State of South Dakota that the foregoing is true and correct, that I have not accepted the disclaimed interest or any benefit thereof, and that I make this Disclaimer of my own free will.

Signature: ______________________________________
Date: [__/__/____]

11. CERTIFICATE OF DELIVERY / SERVICE

I certify that on the date(s) shown below a true and correct copy of this Disclaimer was filed or delivered (in person, or by registered or certified mail) to the following:

Signature: ______________________________________
Printed Name: [________________________________]

12. ATTACHMENTS CHECKLIST

☐ Copy of the Last Will and Testament, trust instrument, or beneficiary designation/contract creating the disclaimed interest
☐ Exhibit A — legal description of any real property disclaimed
☐ Certified copy of the Decedent's Death Certificate
☐ Proof of delivery / mailing (registered or certified mail receipts)
☐ Copy of the recorded Disclaimer (Register of Deeds), if real property is involved
☐ File-stamped copy from the Clerk of the Circuit Court (estate proceeding)

SOURCES AND REFERENCES

• SDCL § 29A-2-801 (Disclaimer of property interest) — https://sdlegislature.gov/Statutes/29A-2-801
• SDCL § 29A-2-801 (Justia) — https://law.justia.com/codes/south-dakota/title-29a/chapter-02/section-29a-2-801/
• 26 U.S.C. § 2518 (Disclaimers) — https://www.law.cornell.edu/uscode/text/26/2518
• Treas. Reg. § 25.2518-2 (Requirements for a qualified disclaimer) — https://www.law.cornell.edu/cfr/text/26/25.2518-2