If you die without a will in South Dakota, your assets will
go to your closest relatives under state “intestate succession” laws. Here are some
details about how intestate succession works in South Dakota.
Which Assets Pass by Intestate Succession
Only assets that would have passed through your will are
affected by intestate succession laws. Usually, that includes only assets that
you own alone, in your own name.
Many valuable assets don’t go through your will, and aren’t
affected by intestate succession laws. Here are some examples:
- property you’ve transferred to a living trust
- life insurance proceeds
- funds in an IRA, 401(k), or other retirement
- securities held in a transfer-on-death account
- payable-on-death bank accounts, or
- property you own with someone else in joint
These assets will pass to the surviving co-owner or to the beneficiary
you named, whether or not you have a will.
To learn more about these types of assets, go to the How to Avoid
Probate section of Nolo.com or read about Avoiding
Probate in South Dakota.
Who Gets What in South Dakota?
Under intestate succession, who gets what depends on whether
or not you have living children, parents, or other close relatives when you
die. Here’s a quick overview:
|If you die with:
||here’s what happens:
children but no spouse
children inherit everything
spouse but no descendants
spouse inherits everything
spouse and descendants from you and that
spouse inherits everything
spouse and at least one descendant from you
and someone other than that spouse
spouse inherits the first $100,000 of your
intestate property, plus 1/2 of the balance
descendants inherit everything else
parents but no spouse or descendants
parents inherit everything
siblings but no spouse, descendants, or
siblings inherit everything
The Spouse’s Share in South Dakota
In South Dakota, if you are married and you die without a
will, what your spouse gets depends on whether or not you have living descendants
-- children, grandchildren, or great-grandchildren. If you don’t, or if all of
your descendants are from you and your spouse, then your spouse inherits all of
your intestate property. However, if you have descendants from someone other
than your spouse, your spouse inherits the first $100,000 of your intestate
property, plus 1/2 of the balance. Your descendants inherit everything else.
Example: Barrett is
married to Jed and also has a 12-year-old daughter from a previous marriage.
Barrett owns a house in joint tenancy with Jed, plus $200,000 worth of
additional, separate property that would have passed under a will if Barrett
had made one. When Barrett dies, Jed inherits the house outright -- it isn’t
intestate property -- plus $150,000 worth of Barrett’s property. Barrett’s daughter
inherits the remaining $50,000 share of Barrett’s property.
Children’s Shares in South Dakota
If you die without a will in South Dakota, your children
will receive an “intestate share” of your property. The size of each child’s
share depends on how many children you have and whether or not you are married.
(See the table above.)
For children to inherit from you under the laws of intestacy,
the state of South Dakota must consider them your children, legally. For many families,
this is not a confusing issue. But it’s not always clear. Here are some things
to keep in mind.
children. Children you legally adopted will receive an intestate share,
just as your biological children do. (S.D. Codified Laws Ann. § 29A-2-114.)
children and stepchildren. Foster children and stepchildren you never
legally adopted will not automatically receive a share.
placed for adoption. Children you placed for adoption and who were legally
adopted by another family will not receive a share. However, if your biological
children were adopted by your spouse, that won’t affect their intestate
inheritance. In addition, if your biological children were adopted by a birth
grandparent or a descendant of a birth grandparent, they can still inherit from
you. (S.D. Codified Laws Ann. § 29A-2-114.)
children. Children conceived by you but not born before your death will
receive a share, as long as they survive for at least 120 hours after birth.
(S.D. Codified Laws Ann. § 29A-2-108.)
born outside of marriage. If you were not married to your children’s mother
when she gave birth to them, they may receive a share of your estate if (1) you
participated in a marriage ceremony that later turned out to be void, (2) you
acknowledged your paternity in writing, or (3) your paternity is proved under
South Dakota law either before or after your death. (S.D. Codified Laws Ann. §
born during your marriage. Any child born to your wife during your marriage
is assumed to be your child and will receive a share of your estate.
Your grandchildren will receive a share only if their parent (your child) has
died before you do.
This can be a tricky area of the law, so if you have
questions about your relationship to your parent or child, get help from an
experienced attorney. If you want to read the law itself, you can find a link
to the South Dakota Codified Laws at the end of this article.
Will the State Get Your Property?
If you die without a will and don’t have any family, your
property will “escheat” into the state’s coffers. For example, your property won’t go to the state if you leave a spouse, children, grandchildren, parents, grandparents, siblings, neices, nephews, or cousins.
Other South Dakota Intestate Succession Rules
Here are a few other things to know about South Dakota intestacy
period. To inherit under South Dakota’s intestate succession statutes, a
person must outlive you by 120 hours. So if you and your brother are in a car
accident and he dies a few hours after you do, his estate would not receive any
of your property.
“Half” relatives inherit as if they were “whole.” That is, your sister with
whom you share a father, but not a mother, has the same right to your property as
she would if you had both parents in common.
relatives. Relatives conceived before -- but born after -- you die inherit
as if they had been born while you were alive, as long as they survive at least
120 hours after birth.
status. Relatives entitled to an intestate share of your property will inherit
whether or not they are citizens or legally in the United States.
To learn more about intestate succession, read How
an Estate Is Settled When There is No Will.
You can find South Dakota’s intestate succession laws here: South
Dakota Codified Laws Ann. § § 29A-2-101 to 29A-2-114.
For more about estate planning, go to the Wills,
Trusts & Probate section of Nolo.com.
Need a lawyer? Search for an experienced estate planning
attorney with Nolo’s