#24488-a-DG
2007 SD 101
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
WALTER L. BUCHHOLZ,
individually and in his capacity,
as PERSONAL REPRESENTATIVE
of the ESTATE OF LINDA C. BUCHHOLZ, Plaintiff and Appellee,
v.
HAROLD E. STORSVE, Defendant and Appellant,
and
SOUTH DAKOTA RETIREMENT SYSTEM, Defendant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA
* * * *
HONORABLE WARREN G. JOHNSON
Judge
* * * *
DYLAN A. WILDE of
Brady & Pluimer, P.C.
Spearfish, South Dakota Attorneys for plaintiff
and appellee.
STEVEN M. CHRISTENSEN of
Christensen Law Office
Deadwood, South Dakota Attorneys for defendant
and appellant.
* * * *
ARGUED AUGUST 28, 2007
OPINION FILED 09/26/07
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GILBERTSON, Chief Justice
[¶1.] Linda C. Buchholz (Linda) passed away, leaving a State of South
Dakota retirement plan naming her ex-spouse, Harold E. Storsve (Storsve), as the
primary beneficiary. Linda’s surviving spouse, Walter L. Buchholz (Buchholz), filed
a declaratory judgment action seeking revocation of the retirement plan’s
beneficiary designation and an order declaring Buchholz the lawful beneficiary of
Linda’s retirement account. The parties filed cross-motions for summary judgment.
The circuit court granted Buchholz’s motion for summary judgment. We affirm.
FACTS AND PROCEDURAL HISTORY
[¶2.] Linda and Storsve were married on October 18, 1966. On June 10,
1969, Linda began working for Black Hills State College (now Black Hills State
University) in Spearfish, South Dakota. As a state employee, Linda participated in
the retirement plan administered through the South Dakota Retirement System
(SDRS). 1 She started making contributions on July 1, 1971, and named her then
husband, Storsve, as the primary beneficiary of her retirement plan. 2
[¶3.] On June 4, 1975, Linda and Storsve divorced. Neither the divorce
decree nor the associated findings of fact and conclusions of law made any reference
to Linda’s retirement plan. The only related conclusion stated that “each of the
parties [is] awarded all of his or her personal property.” Linda received annual
1. Defendant South Dakota Retirement System notified this Court that it takes
no position in this case, other than that the law be served.
2. Linda named her father as the contingent beneficiary, but he predeceased
her.
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statements setting forth the status of her retirement account, which, until 1996,
also listed her designated primary beneficiary. Linda did not amend, change or
remove Storsve as the designated beneficiary of her retirement account after their
divorce.
[¶4.] Linda later married Buchholz on October 1, 1979. Approximately
three years after Linda and Buchholz married, Linda quit working for Black Hills
State College. Linda passed away on November 8, 2006, while still married to
Buchholz. At the time of her death, Storsve was still the named beneficiary on her
South Dakota retirement plan. After Linda’s death, SDRS informed Storsve that he
was the named beneficiary of Linda’s retirement plan.
[¶5.] Despite this designation, Buchholz claimed that he was entitled to the
assets from Linda’s retirement plan and brought a declaratory judgment action to
determine his legal rights to the same. Both parties submitted motions for
summary judgment. After a hearing on both motions, the circuit court denied
Storsve’s motion and granted Buchholz’s concluding that SDCL 29A-2-804
automatically revoked the beneficiary designation in the name of Storsve upon
Storsve and Linda’s divorce; that SDCL 29A-2-804 did not violate the Contract
Clause of the South Dakota Constitution; and that Buchholz was the lawful
beneficiary of Linda’s South Dakota retirement account.
[¶6.] Storsve appeals raising the following issues:
1. Whether the circuit court erroneously applied SDCL 29A-2-
804(b) to automatically revoke the beneficiary designation in
the name of Storsve.
2. Whether application of SDCL 29A-2-804 is unconstitutional.
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STANDARD OF REVIEW
[¶7.] Both parties moved for summary judgment and the material facts are
undisputed. Thus, this Court’s “‘review is limited to determining whether the
[circuit] court correctly applied the law.’” Johns v. Black Hills Power, Inc., 2006 SD
85, ¶4, 722 NW2d 554, 556 (quotation omitted) (alteration in original).
Furthermore, “‘[s]tatutory interpretation and application are questions of law, and
are reviewed by this Court under the de novo standard of review.’” Rotenberger v.
Burghduff, 2007 SD 7, ¶8, 727 NW2d 291, 294 (quotation omitted). We apply the de
novo standard when reviewing the constitutionality of a statute. Purdy v. Fleming,
2002 SD 156, ¶12, 655 NW2d 424, 429 (citations omitted). Furthermore, we have
said
[W]hen this Court reviews the constitutionality of a law,
it will be upheld unless it is clearly and unmistakably
unconstitutional. That law is presumed to be constitutional.
Any challenge must rebut the presumption and prove beyond
a reasonable doubt that the law is unconstitutional.
Am. Fed’n of State, County, and Mun. Employees (AFSCME) Local 1922 v. State,
444 NW2d 10, 14 (SD 1989) (internal citations omitted).
ANALYSIS AND DECISION
[¶8.] 1. Whether the circuit court erroneously applied
SDCL 29A-2-804(b) to automatically revoke the
beneficiary designation in the name of Storsve.
[¶9.] Prior to 1982, this issue had not been addressed by this Court or by
statute. While the Uniform Probate Code was passed by the South Dakota
Legislature in 1974, see 1974 SD Sess. Laws ch 196, and subsequently repealed in
1976, see 1976 SD Sess. Laws ch 175 § 2, ch 177 § 3, it did not contain the provision
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that was to become SDCL 29A-2-804, which is at issue in this case. Until 1995, the
general rule outside South Dakota in non-UPC states was that divorce did not affect
a beneficiary designation. See Girard v. Pardun, 318 NW2d 137, 138-40 (SD 1982).
In Girard we adopted this rule. Id. at 140.
[¶10.] However, in 1995, South Dakota adopted the Uniform Probate Code
(UPC), which resulted in the enactment of SDCL 29A-2-804. This statute provides
in pertinent part:
(b) Except as provided by the express terms of a governing
instrument, a court order, or a contract relating to the division
of the marital estate made between the divorced individuals
before or after the marriage, divorce, or annulment, the divorce
or annulment of a marriage:
(1) Revokes any revocable (i) disposition or appointment of
property made by a divorced individual to a former spouse in a
governing instrument . . . .
SDCL 29A-2-804(b) (emphasis added). The statute defines “[g]overning
instrument” as “a will, trust, or other governing instrument executed by the
divorced individual before the divorce or annulment of the individual’s marriage to
the former spouse.” SDCL 29A-2-804(a)(4). The South Dakota Uniform Probate
Code generally defines “[g]overning instrument” to encompass a number of
documents, including “a . . . retirement, or similar benefit plan. . . .” SDCL 29A-1-
201(19). Storsve does not dispute the fact that Linda’s retirement account qualifies
as a “governing instrument” under SDCL 29A-2-804(b).
[¶11.] Storsve contends that applying SDCL 29A-2-804 in this case violates
the fundamental rule of statutory construction that statutes are to only have
prospective effect unless a retroactive effect is clearly intended. See Fed. Farm
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Mortgage Corp. v. Noel, 66 SD 481, 285 NW 871, 872 (1939). However, the South
Dakota Legislature has made it clear that it intended UPC rules of construction,
such as SDCL 29A-2-804(b), to apply retroactively. SDCL 29A-8-101 provides in
pertinent part:
(a) This code takes effect on July 1, 1995.
(b) Except as provided elsewhere in this code:
...
(2) This code applies to governing instruments executed by
decedents dying on or after July 1, 1995, no matter when
executed. Any rule of construction or presumption provided in
this code applies to governing instruments executed before July 1,
1995, unless there is a clear indication of a contrary intent. . . .
(Emphasis added). The governing instrument in this case was executed by Linda
who died on November 8, 2006, eleven years after July 1, 1995. Thus, SDCL 29A-2-
804(b) applies to the governing instrument provided it is considered a “rule of
construction.”
[¶12.] Other courts that have addressed this issue have applied the statute
retroactively. For instance, the Tenth Circuit Court of Appeals held “the revocation-
upon-divorce provision set forth in § 75-2-804(2) is a rule of construction, and thus
falls within coverage of the effective-date provision. . . .” Stillman v. Teachers Ins.
& Annuity Ass’n College Retirement Equities Fund, 343 F3d 1311, 1317 (10thCir
2003). “[I]n the law of donative transfers, ‘rules of construction . . . aid in
determining and giving effect to the donor’s intention or probable intention[.]’” Id.
(quotation omitted). Since the revocation-upon-divorce statute attempts to
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effectuate the intention of the donor, it is a rule of construction. Id. The Stillman
court reasoned:
The Uniform Probate Code provision on which § 75-2-804(2) is
modeled derives from the recognition “that when spouses are
sufficiently unhappy with each other that they obtain a divorce,
neither is likely to want to transfer his or her property to the
survivor on death.” Revocation-upon-divorce statutes “reflect
the legislative judgment that when the transferor leaves
unaltered a will or trust or insurance beneficiary designation
in favor of an ex-spouse, this failure to designate substitute
takers more likely than not represents inattention rather than
intention.” Thus, § 75-2-804(2) attributes an intent to the donor
based on an assessment of a typical donor’s intention. We also
note that this statutory attribution of intent is rebuttable. It
applies “[e]xcept as provided by the express terms of a governing
instrument [such as an annuity contract], a court order, or a
contract relating to the division of the marital estate. . . .”
Id. at 1318 (internal quotations omitted) (alterations in original). See also Allstate
Life Ins. Co. v. Hanson, 200 FSupp2d 1012, 1016 (EDWis 2002) (“[t]he legislature [ ]
applied the 1998 revisions retroactively”).
[¶13.] Storsve also contends that one of the three exceptions in SDCL 29A-2-
804(b) applies in this case; therefore, the general rule that divorce automatically
revokes an ex-spouse’s beneficiary designation in a retirement plan does not apply.
Revocation of a beneficiary designation is automatic upon divorce “[e]xcept as
provided by the express terms of” (1) “a governing instrument,” (2) “a court order,”
or (3) “a contract relating to the division of the marital estate made between the
divorced individuals before or after the marriage, divorce, or annulment.” SDCL
29A-2-804(b). Storsve argues that the retirement plan expressly designated himself
as the beneficiary; therefore, the first exception applies.
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[¶14.] However, were we to adopt Storsve’s position that the beneficiary
designation alone meets the “express terms of a governing instrument” exception,
SDCL 29A-2-804 would never apply because every governing instrument contains
this provision, and it is this provision that prompts the necessity of the statute.
Thus, a beneficiary designation itself is not sufficient to invoke the express terms
exception. See also Lincoln Benefit Life Co. v. Heitz, 468 FSupp2d 1062, 1066, 1069
(DMinn 2007) (recognizing the same express terms exception found in South
Dakota’s re-designation statute and holding that the beneficiary designation
automatically revoked upon divorce, despite the life insurance policy’s designation
of the former spouse as the beneficiary).
[¶15.] We hereby interpret the statute to require that the governing
instrument contain express terms referring to divorce, specifically stating that the
beneficiary will remain as the designated beneficiary despite divorce. Linda failed
to indicate any such terms in the SDRS plan. Thus, the “express terms of a
governing instrument” exception does not apply.
[¶16.] Storsve also argues that Linda’s inactions of not removing him as the
beneficiary indicates her intent to leave Storsve as the beneficiary despite the
couple’s divorce. However, we observe that courts have considered and rejected this
same argument raised by Storsve. An Arizona court held the purpose of the
revocation-upon-divorce or re-designation statute, as similar statutes have been
termed by various courts, “would be eviscerated if a former spouse could circumvent
the automatic revocation effected by the statute by submitting self-serving
testimony that the decedent spouse’s inaction reflected an intention to revive his or
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her designation of the ex-spouse as the beneficiary.” Estate of Lamparella, 109 P3d
959, 966 (ArizAppDiv 2005). Instead, “[i]f a divorced spouse wishes to redesignate
the former spouse as the beneficiary post-dissolution, such designation must be in
writing and must otherwise comply with applicable policy terms.” Id. at 967. See
also Mearns v. Scharbach, 12 P3d 1048, 1053 (WashAppDiv 2000) (“any
redesignation of [ex-spouse] as a beneficiary had to be in writing”).
[¶17.] Herein there is no showing Linda ever read the annual statements she
received from SDRS. Her inaction does not equate with consent. Storsve fails in his
burden under SDCL 29A-2-804 to show Linda’s inaction rises to a clear indication of
a contrary intent to her decree of divorce from Storsve and its complete division of
their martial assets. A policy holder’s inaction is insufficient to circumvent
application of SDCL 29A-2-804. Based on foregoing, the circuit court did not err
when it applied SDCL 29A-2-804 to automatically revoke the beneficiary
designation in Linda’s retirement plan.
[¶18.] 2. Whether application of SDCL 29A-2-804 is
unconstitutional.
[¶19.] Storsve further contends that retroactive application of SDCL 29A-2-
804 unconstitutionally impairs Linda’s contract with SDRS by disrupting the
expectation that the proceeds would go to the named beneficiary. He specifically
argues that retroactive application violates the Contract Clause of Article VI,
Section 12 of the South Dakota Constitution. 3
3. Article VI Section 12 of the South Dakota Constitution states: “No ex post
facto law, or law impairing the obligation of contracts or making any
irrevocable grant of privilege, franchise or immunity, shall be passed.”
(continued . . .)
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[¶20.] When presented with the issue of whether a statute violates the
Contract Clause, “[o]ur first inquiry is whether there has been a substantial
impairment of the contractual relationship.” AFSCME Local 1922, 444 NW2d at 14
(citation omitted). The United States Supreme Court has explained that “[t]his
inquiry has three components: [(1)] whether there is a contractual relationship, [(2)]
whether a change in law impairs that contractual relationship, and [(3)] whether
the impairment is substantial.” GMC v. Romein, 503 US 181, 186, 112 SCt 1105,
1109, 117 LEd2d 328 (1992). 4 Furthermore, even if there is a substantial
impairment, the statute will survive “a constitutional attack if the impairment is
justified as reasonable and necessary to serve an important public purpose.”
Lincoln Benefit, 468 FSupp2d at 1067 (citation omitted).
[¶21.] A number of courts applying this rubric have determined that applying
state re-designation statutes retroactively does not violate the Contract Clause.
Stillman, 343 F3d at 1322; Lincoln Benefit, 468 FSupp2d at 1069; Hanson, 200
FSupp2d at 1021; Estate of DeWitt, 54 P3d 849, 859 (Colo 2002); Mearns, 12 P3d at
1056; Estate of Dobert, 963 P2d 327, 332 (ArizCtApp 1998). Storsve, however,
________________________
(. . . continued)
Similarly, Article I, Section 10 of the United States Constitution provides:
“No State shall . . . pass any . . . Law impairing the Obligation of Contracts. . .
.”
4. In determining whether a statute violates South Dakota’s Contract Clause,
this Court has looked to the United States Supreme Court’s analysis of the
Federal Constitution’s Contract Clause for guidance. See Engelcke v.
Farmers’ State Bank, 61 SD 92, 246 NW 288, 290-91 (1932) (stating the
Federal and State Constitutions contain in substance and effect the same
provisions).
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relies on Whirlpool Corp. v. Ritter, 929 F2d 1318 (8thCir 1991), wherein the Eighth
Circuit Court of Appeals held that a similar Oklahoma statute was an
unconstitutional impairment of contracts when applied to insurance contracts
entered into before the statute became effective. Id. at 1323. However the
Whirlpool decision has been persuasively criticized by both the Joint Editorial
Board (JEB) for the Uniform Probate Code and other court decisions. Stillman, 343
F3d at 1322; Hanson, 200 FSupp2d at 1019; DeWitt, 54 P3d at 859-60; Mearns, 12
P3d at 1056.
[¶22.] We first address the alleged impairment of Storsve’s contractual
rights. In determining whether the first component is satisfied, i.e., whether there
is a contractual relationship, “a party first must demonstrate that the contract gave
[him] a vested interest, not merely an expectation interest.” Lincoln Benefit, 468
FSupp2d at 1067 (citation omitted); Hanson, 200 FSupp2d at 1018. This Court has
already determined that a beneficiary only has an expectancy interest. Girard, 318
NW2d at 140. Therefore, Storsve fails to meet the first component, and thus, our
analysis with regards to his contractual rights ends.
[¶23.] Storsve also attempts to argue that Linda’s contractual relationship
with SDRS was impaired by the retroactive application of SDCL 29A-2-804.
Assuming, without deciding, that Storsve may raise the rights of the policyholder,
we address whether SDCL 29A-2-804 impaired Linda’s vested right, if that
impairment was substantial, and if so, whether it was justified.
[¶24.] First, Linda unquestionably had a contract with SDRS in which her
rights were vested. See Hanson, 200 FSupp at 1020 (stating that insured had a
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vested interest in life insurance contract). Under the contract, SDRS was required
to provide the assets in Linda’s retirement account to her designated beneficiary on
the occasion of her death. However, the Hanson court held that a similar re-
designation statute may have “changed the identity of the presumptive beneficiary,
but [it] did not alter either party’s obligations under the contract. [The insured]
was required to pay premiums, and [the insurer was] required to pay benefits.
Thus, the essential elements of the bargained-for exchange remain[ed] intact.” 200
FSupp2d at 1020 (citation omitted); see also Lincoln Benefit, 468 FSupp2d at 1069.
[¶25.] Furthermore, the Hanson court held that the statute “only created a
default rule.” 200 FSupp2d at 1020. The re-designation statute did not prevent the
policyholder from maintaining an ex-spouse as the beneficiary. Id. Thus, the
Hanson court concluded that the statute “did not impose the sort of ‘severe’
restriction that has been found to be ‘substantial.’” Id. (citation omitted); see also
Stillman, 343 F3d at 1322 (“[b]ecause no contractual obligation is impaired by [re-
designation statute], there is no violation of the federal Contracts Clause in
applying the statute here”).
[¶26.] The Hanson court further stated that even if it were to find that the re-
designation statute substantially impaired the contractual relationship, the statute
would nevertheless be upheld because “it serves significant and legitimate public
purposes.” Id. at 1020-21. The Lincoln Benefit court also held that such
hypothetical impairment
would nonetheless survive a constitutional challenge because
the impairment is justified and reasonable in that it serves
important public purposes, including promoting uniformity
among state law treatment of probate and non-probate transfers
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and implementing a rule of construction that reflects legislative
judgment that ex-spouses often intend to change their
beneficiaries.
468 FSupp2d at 1069 (citation omitted).
[¶27.] We agree with the majority of courts that have decided the
constitutionality issue and hold that SDCL 29A-2-804 does not substantially impair
either Storsve’s or Linda’s contractual rights and if substantial impairment was
found, it would be justified. Therefore, SDCL 29A-2-804 is constitutional and was
appropriately applied.
[¶28.] Affirmed.
[¶29.] SABERS and KONENKAMP, Justices, and O’BRIEN and BARNETT,
Circuit Court Judges, concur.
[¶30.] O’BRIEN, Circuit Court Judge, sitting for ZINTER, Justice,
disqualified, and BARNETT, Circuit Court Judge, sitting for MEIERHENRY,
Justice, disqualified.
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