Detailed Answer
When a person dies without a valid will in South Dakota, the state’s intestate succession rules determine who inherits. The basic rule for children is simple: the estate passes to the decedent’s descendants — first to surviving children and, if a child has died before the decedent, to that child’s descendants by right of representation.
South Dakota’s intestacy rules are codified in the South Dakota Codified Laws, Title 29A, Chapter 2. See the chapter for full statutory language: SDCL Title 29A, Chapter 2 (Intestate Succession).
How shares are allocated among children
Key points to understand:
- Living children inherit in equal shares. If the decedent is survived by n living children, each surviving child gets 1/n of the portion of the estate that passes to descendants.
- If a child predeceased the decedent but left descendants (for example, grandchildren), those descendants inherit the share their parent would have received. This is often called “representation” (sometimes described as “per stirpes”).
- Representation continues down the family line: if a grandchild predeceased but left great-grandchildren, the great-grandchildren step into that branch and share the parental share equally among them.
Illustrative examples
Example 1 — Two surviving children and one predeceased child with descendants:
Decedent’s children: A (alive), B (alive), C (deceased, left two children C1 and C2). Distribution among the three branches (A, B, and C’s branch) is equal: each branch gets one-third. A gets 1/3, B gets 1/3, and C1 and C2 split C’s 1/3 share equally (each gets 1/6).
Example 2 — One surviving child, one deceased child with no descendants:
Decedent’s children: A (alive), B (deceased, no descendants). A receives the entire share that would go to descendants (A gets 100% of the descendants’ portion).
Adopted children, children born out of wedlock, and stepchildren
- Legally adopted children are treated as descendants for intestate succession, just like biological children. (See South Dakota adoption statutes for details: SDCL Title 25, Chapter 6 (Adoption).)
- Children born out of wedlock can inherit from and through a parent if paternity is established under South Dakota law.
- Stepchildren inherit only if legally adopted; mere step-relationship without adoption does not automatically create intestate succession rights.
Interaction with a surviving spouse
The whole estate does not always go only to the children. If a surviving spouse exists, South Dakota law divides the estate according to statutory formulas that consider whether the children are also children of the surviving spouse. The spouse’s share can reduce the portion that goes to the children. For the statutory framework, see SDCL Title 29A, Chapter 2.
When a child’s right to inherit may be contested
There are common situations that can complicate distribution among children: claims of paternity, questions about an adoption’s validity, alleged disinheritance due to a competent will, or competing claims by creditors. Often a probate court will resolve these disputes after evidence is presented.
Helpful Hints
- Collect vital records early: secure birth certificates, adoption decrees, and death certificates for the decedent and children/descendants.
- If paternity is unclear for a child born outside marriage, consider establishing parentage promptly (court order or DNA where applicable).
- If a surviving spouse exists, do not assume children receive the entire estate — get legal guidance on how the spouse’s statutory share affects distribution.
- Prepare a family tree showing living descendants and predeceased children with their descendants. This makes partitioning by representation easier to calculate.
- For small estates, South Dakota offers simplified probate procedures. Check the South Dakota Unified Judicial System probate resources or ask a probate clerk about simplified procedures.
- When in doubt, consult a probate attorney. Complex family situations (adoptions, out-of-wedlock children, contested paternity, blended families) often warrant professional help.
Disclaimer: This article explains general principles of South Dakota intestate succession and is for educational purposes only. It is not legal advice. For advice about a specific estate or to start a probate proceeding, consult a licensed attorney in South Dakota.