Updated May 20, 2016
If you file for Chapter 7 bankruptcy in South Dakota, the South Dakota bankruptcy exemptions can help you keep some or all of your property. If you file for Chapter 13 bankruptcy, the South Dakota bankruptcy exemptions may reduce the total amount you must pay your unsecured creditors. (Learn how bankruptcy exemptions work in both Chapter 7 and Chapter 13 bankruptcy.)
Below you can learn what property the South Dakota bankruptcy exemptions protect, whether you can use the federal exemptions in South Dakota, what happens to exemptions if you are married and filing jointly, and more.
Some states allow you to choose between using the state exemptions and a list of federal bankruptcy exemptions. In South Dakota, however, you do not have this choice; you must use the South Dakota bankruptcy exemptions.
Although you can’t use the federal exemptions in South Dakota, you may use any of the federal non-bankruptcy exemptions. The federal non-bankruptcy exemptions protect property such as federal retirement accounts and veterans’ benefits. You can use both the federal non-bankruptcy exemptions and the state exemptions; you don’t have to choose between the two lists.
Unless otherwise stated, if you are married and filing a joint bankruptcy petition, you can double the amount of the South Dakota bankruptcy exemption if you both own the property. If only one spouse owns the property, then you cannot double the amount.
Below are some of the most commonly used bankruptcy exemptions. The statute citations, unless otherwise noted, are to the South Dakota Codified Laws.
In South Dakota, you can exempt the full amount of your home, as long as the property is less than one acre if it’s in a town and 160 acres elsewhere. This exemption covers a mobile home if it’s larger than 240 square feet and you have registered it with the state at least six months prior to your bankruptcy. You can exempt the proceeds from selling your home for up to one year, but the amount is limited to $30,000 (or $170,000 if you are a widow, widower, or over 70 years old and not married). §43-31-1 through §43-31-4. (Learn more about the South Dakota homestead exemption.)
Spouses may not double the homestead exemption.
The spouse or child of a deceased homeowner may also claim the exemption. §43-31-13. The exemption does not cover equity in a gold or silver mine, mill, or smelter. §43-31-5.
In South Dakota, you can exempt the following types of personal property. (See §43-45-2(2) through (5); §43-29-25.) Note that there is no specific exemption for a car or other motor vehicle. However, you can use South Dakota’s wildcard exemption (described below) to exempt equity in your car.
Wages that you earned within the 60 days prior to your bankruptcy if you need them to support your family. §15-20-12
Wages of prisoners in work programs. §24-8-10.
Tax exempt retirement accounts (including 401(k)s, 403(b)s, profit-sharing and money purchase plans, SEP and SIMPLE IRAs, and defined benefit plans). 11 U.S.C. § 522.
IRAS and Roth IRAs to $1,283,025. (This amount is adjusted every three years. For the most recent figure, see Your Retirement Account in Bankruptcy.) 11 U.S.C. § 522(b)(3)(C)(n).
Public employees. §3-12-115.
City employees. §9-16-47.
ERISA-qualified benefits up to $1,000,000 of income and distribution. §9-16-47.
Crime victims' compensation. §23A-28B-24.
Public assistance. §28-7A-18.
Unemployment compensation. §61-6-28.
Workers' compensation. §62-4-42.
None. But you can use the South Dakota wildcard exemption to protect tools of the trade.
Life insurance proceeds up to $10,000 if the beneficiary is a surviving spouse or child. §43-45-6.
Health benefits up to $20,000; the proceeds or cash value of an endowment or life insurance policy, up to $20,000. §58-12-4.
Annuity contract proceeds up to $250 per month. §58-12-8.
Life insurance proceeds if the policy specifically states that it cannot be used to pay creditors. §58-15-70.
Fraternal benefit society benefits. §58-37A-18.
In South Dakota, you can use the wildcard exemption to exempt up to $5,000 of any type of personal property. If you are the head of a family, you can exempt up to $7,000 of any type of personal property. §43-45-4.
This list includes some of the more commonly used South Dakota bankruptcy exemptions. There may be others. In addition, South Dakota periodically updates its exemption amounts and sometimes adds new exemptions. To find the most current laws, visit the South Dakota Codified Laws portion of the South Dakota legislature’s website. Be forewarned, however, that the exemptions are found in various parts of the code. To save time and ensure you’ve got the correct information, consider consulting with a South Dakota bankruptcy attorney.