Wrongful Death Lawsuits in South Dakota

A look at wrongful death claims in South Dakota, including eligibility for filing the lawsuit, what damages are recoverable, and more.

Updated by , MSLIS Long Island University
Updated 6/29/2021

In South Dakota, when a person dies as a result of another party's accidental or intentional action, the deceased person's estate could be eligible to file a wrongful death lawsuit. In this article, we'll look at how South Dakota law defines wrongful death, who can file a wrongful death claim, the types of available damages, as well as the time limit on filing this type of lawsuit in the state's civil courts.

What Is "Wrongful Death" in South Dakota?

In South Dakota, a "wrongful death" occurs when a person (or fetus) dies as a result of another party's "wrongful act, neglect, or default," when the circumstances would have permitted the deceased person to file a personal injury lawsuit had he or she survived. (S.D. Codified Laws § 21-5-1 (2021).) In other words, one way to think of a wrongful death claim is as a type of personal injury lawsuit in which the injured person is no longer able to bring his or her own case to court. Instead, another party must step in and seek compensation on behalf of the deceased.

As with other types of personal injury claims, many different events or actions can be the basis for a wrongful death lawsuit, including:

Also as in other types of personal injury cases, in a successful wrongful death lawsuit the defendant's liability is expressed solely in terms of financial compensation (or "damages") that the court orders the defendant to pay to the deceased person's survivors or estate. This is one major difference between a wrongful death lawsuit and a criminal homicide case, where a conviction can result in jail or prison time, fines paid to the state, probation, and other penalties.

Another big difference between a criminal prosecution for homicide and a wrongful death civil lawsuit: In criminal court, the state or federal government must establish the accused person's guilt "beyond a reasonable doubt"—a very high bar for the prosecution to clear. In a civil lawsuit, the plaintiff must demonstrate the defendant's liability only "by a preponderance of the evidence," meaning it's more likely than not that the defendant is responsible for the death. It is possible, though, for a single event to result in criminal charges and a wrongful death claim: A defendant can be sued for wrongful death in civil court while facing criminal charges related to the same death. In fact, South Dakota's law specifies that a wrongful death lawsuit can be filed even if the death was the result of a crime.

Learn more about proving liability in a wrongful death case.

Who Is Eligible to File a South Dakota Wrongful Death Lawsuit?

In some states, the deceased person's surviving family can file a wrongful death lawsuit. In South Dakota, however, a wrongful death lawsuit must be brought to court by the personal representative (sometimes called the "executor") of the deceased person's estate. If the deceased person had an estate plan, he or she probably named a personal representative there. If the named personal representative cannot or does not wish to serve—or if the deceased person had no estate plan—the court may appoint someone.

Read more about who has the legal right to file a wrongful death lawsuit.

What Damages Are Possible in a South Dakota Wrongful Death Case?

In a successful wrongful death lawsuit, the court orders the defendant to pay "damages"—or the plaintiff's claimed losses—to the deceased person's survivors. In South Dakota, although the personal representative must file the wrongful death claim, any damages recovered will go to the deceased person's surviving spouse and children. If there is no surviving spouse or child, the damages will be awarded to the deceased person's surviving parents or next of kin. If the deceased person was an unborn child, the child's mother or married parents will receive the damages.

Damages can be awarded to compensate for several different types of losses in a South Dakota wrongful death case, including:

  • lost wages and benefits, including the value of the wages and benefits the deceased person could reasonably have been expected to earn if he or she had lived
  • the value of household services the deceased person provided the family
  • loss of companionship, comfort, advice, guidance, affection, and support
  • medical expenses related to the deceased person's final illness or injury, and
  • funeral and burial expenses.

Read the full text of South Dakota's wrongful death statues at S.D. Codified Laws §§ 21-5-1 to 21-5-9, and learn more about the damages that might be available in a wrongful death case.

How Long Do I Have to File a Wrongful Death Claim in South Dakota?

Wrongful death claims must be filed within a specific period of time, set by a law known as a "statute of limitations." In South Dakota, the filing deadline is three years from the date of the person's death. (S.D. Codified Laws § 21-5-3 (2021).) Lawsuits that are not filed before the three-year period expires will likely be barred from court entirely.

Wrongful death cases can be complicated—and the law can change at any time. If you're considering a wrongful death lawsuit in South Dakota, it's a good idea to consult an experienced personal injury attorney, who can explain how the law might apply to your specific situation.

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