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.
Only assets that pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don't have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.
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||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 parents||siblings inherit everything|
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. Jed also inherits $150,000 worth of Barrett's property that is, $100,000 plus 1/2 of the remaining $100,000 balance. Barrett's daughter inherits the remaining $50,000 share of Barrett's property.
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, whether or not you are married, whether your spouse is also your children's parent, and whether you have any children from a previous relationship. (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.
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.
If you die without a will and don't have any family, your property will "escheat" into the state's coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won't go to the state if you leave a spouse, children, grandchildren, parents, grandparents, siblings, nieces, nephews, aunts, uncles, or cousins.
Here are a few other things to know about South Dakota intestacy laws.
To learn more about intestate succession, read How an Estate Is Settled If There's 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.