A South Dakota postnuptial agreement is a document married couples use to decide their asset division if their marriage ends due to divorce or one spouse’s death. This contract helps couples decide on circumstances that work for them, as it supersedes the state’s default rules. Dissimilar to a prenup, the parties sign a postnup after they get married.
Understanding Postnups in South Dakota
Subject to Scrutiny and Validity Requirements
According to Smid v. Smid 756 N.W.2d. 1, a postnup is subject to scrutiny because of the confidential nature of a husband and wife’s relationship. Furthermore, this case emphasizes that a court of law will uphold a postnup in cases of death or divorce if all the following statements are true:
- Both parties freely entered the agreement.
- Both parties adequately disclosed their assets.
- The agreement involved adequate consideration, meaning both parties received something of value in exchange for entering the agreement.
§ 25-2-10 – Property Transactions of Husband or Wife
- The wife or husband can make agreements or deals with each other or other people regarding property, just like they could if they were single.
- All agreements must abide by the same rules that apply to people in confidential relationships.
§ 25-2-13 – Alteration of Legal Relations by Husband and Wife
- A wife and husband cannot alter their legal relations, except as to property, via a contract.
- They may agree in writing to a swift separation and make arrangements to support either of them and their children during the separation.
- For such a separation agreement, the parties’ mutual consent is adequate consideration.
§ 29A-6-113 – Provisions Deemed Nontestamentary
- A provision for a non-probate transfer on death in a postnup is nontestamentary. This subsection includes a provision that:
- Money owned by, controlled by, or due to a decedent before their death must be paid after the decedent’s death to someone the decedent designated in the document or a separate writing.
- Money due or to become due under the postnup ceases to be payable if the promisee or promisor dies before demand or payment.
- Property owned or controlled by the decedent before death, which is the subject of the postnup, passes to a decedent’s beneficiary either in the postnup or in separate writing.
- Please note these rules don’t change the rights that creditors (people or organizations owed money) have under other laws. They still have the right to collect debts owed to them from the deceased person’s estate.
