SDCL § 55-1-40: Language resulting in classification of distribution interest.

Although not the exclusive means to create a distribution interest, absent clear and convincing evidence to the contrary, the following language by itself results in the following classification of distribution interest:

(1) Mandatory interest:

(a) "All income shall be distributed to (named beneficiary)"; or

(b) "One hundred thousand dollars a year shall be distributed to (named beneficiary)";

(2) Support interest:

(a) "The trustee shall make distributions for health, education, maintenance, and support";

(3) Discretionary interest:

(a) "The trustee, may, in the trustee's sole and absolute discretion make distributions for health, education, maintenance, and support";

(b) "The trustee, in the trustee's sole and absolute discretion, shall make distributions for health, education, maintenance, and support";

(c) "The trustee may make distributions for health, education, maintenance, and support";

(d) "The trustee shall make distributions for health, education, maintenance, and support. The trustees may exclude any of the beneficiaries or may make unequal distributions among them";

(e) "The trustee may make distributions for health, education, maintenance, support, comfort, and general welfare.