Detailed Answer
Under South Dakota law, a person who is still legally married when someone dies is treated as the decedent’s spouse for probate and inheritance purposes. That means if a divorce is not final on the date of death, the estranged spouse generally retains the legal rights of a surviving spouse and can make claims against the decedent’s estate.
How that plays out depends on several facts: whether the decedent left a valid will, whether the decedent died intestate (without a will), and whether there is a enforceable signed agreement (for example, a separation agreement or marital property waiver) that changes the spouse’s rights.
When there is no final divorce
- If the decedent left no valid will (intestate): the surviving spouse is usually entitled to a statutory share of the estate under intestacy rules. The exact share depends on whether the decedent left children, parents, or other relatives.
- If the decedent left a will that disinherits or leaves little to the spouse: in many states the surviving spouse may still have statutory protections—such as an elective share or a statutory allowance—and can choose to take that statutory share instead of what the will provides. South Dakota law provides for allowances and certain spousal rights in probate; an unmarried or divorced person would lose those, but a spouse whose divorce was not final normally retains them.
- If there is a signed premarital, postnuptial, or separation agreement that explicitly waives the spouse’s inheritance or elective-share rights: a valid, enforceable waiver can bar the estranged spouse from claiming under the estate even if the divorce is not final. Whether such an agreement is valid depends on formalities and fairness under South Dakota contract and family law.
Important practical examples (hypotheticals)
Hypothetical A — No will, divorce pending
John and Mary are separated and Mary has filed for divorce, but the divorce has not been finalized when John dies. Because they are still legally married on the date of John’s death, Mary is treated as the surviving spouse. She can inherit under intestacy rules and can assert any statutory spousal allowances the law provides.
Hypothetical B — Will leaves estate to children, divorce not final
Same facts, but John left a will leaving everything to his children and nothing to Mary. Mary may still be able to assert a statutory spousal right (for example, an elective share or statutory allowance) depending on South Dakota probate rules. She should consult a probate attorney quickly to learn how to preserve those rights.
Hypothetical C — Signed separation agreement waiving estate rights
Before filing, John and Mary signed a written separation agreement in which Mary waived any rights to John’s estate and to a spousal allowance; the divorce is still pending when John dies. If the waiver is valid and was executed with the necessary formalities and knowledge, Mary may be barred from claiming under the estate despite the divorce being unfinished.
What an executor or personal representative should do
- Confirm the marital status on the date of death by obtaining a certified marriage certificate and reviewing divorce filings and any judgments.
- Search for written marital agreements or waivers (prenuptial, postnuptial, separation agreements) that might alter spousal rights.
- Check beneficiary designations on retirement accounts, life insurance, and payable-on-death accounts. Many beneficiary designations are effective despite what a will says, and unless state law or a completed divorce automatically revokes those designations, the named beneficiary may still take.
- Consider notifying any person asserting spousal rights and consult probate counsel to determine whether to contest a claim or to follow statutory procedures for allowances and elective shares.
Where to look in South Dakota law
Key topics in South Dakota law you may want to review or ask an attorney about include intestate succession, spousal allowances and the elective share (if applicable), revocation of beneficiary or will provisions by divorce, and enforceability of marital waivers. The South Dakota Codified Laws are available online at the South Dakota Legislature website: https://sdlegislature.gov/Statutes/Codified_Laws. For probate procedure and local court forms, see the South Dakota Unified Judicial System: https://ujs.sd.gov.
Bottom line
If the divorce was not final when the person died, the estranged spouse generally retains the legal status and rights of a surviving spouse in South Dakota and can make claims under the decedent’s estate unless there is a valid, enforceable waiver or specific statute that changes that outcome. Exact results depend on the estate plan (or lack of one), any signed agreements, beneficiary designations, and the specific statutory rights available in probate.
Disclaimer: This article is for general informational purposes and does not constitute legal advice. It does not create an attorney-client relationship. For advice about a specific situation, consult a South Dakota probate or family law attorney promptly.
Helpful Hints
- Gather paperwork: marriage certificate, any divorce filings, separation agreements, wills, beneficiary designations, and financial account statements.
- Act quickly: probate deadlines and time limits to assert elective-share or to contest a will can be short.
- Don’t assume separation = no rights: only a final divorce or a valid signed waiver typically removes spousal inheritance rights.
- Check beneficiary forms: life insurance and retirement account beneficiaries typically govern distributions even if the will says otherwise.
- Speak with a probate attorney in South Dakota: local rules and statutory details matter and an attorney can explain deadlines, likely outcomes, and options.
- If you are the executor: document all notices and communications and get legal advice before paying out estate funds if a spouse’s right is unclear.