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 account
- securities held in a transfer-on-death account
- payable-on-death bank accounts, or
- property you own with someone else in joint tenancy.
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will.
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:
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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.
- Adopted children. Children you legally adopted will receive an intestate share, just as your biological children do. (S.D. Codified Laws Ann. § 29A-2-114.)
- Foster children and stepchildren. Foster children and stepchildren you never legally adopted will not automatically receive a share.
- Children 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.)
- Posthumous 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.)
- Children 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. § 29A-2-114.)
- Children 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.
- Grandchildren. 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 laws.
- Survivorship 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. “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.
- Posthumous 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.
- Immigration 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.
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