Disclaimer: This article provides general information about South Dakota probate law and is not legal advice. Consult a qualified attorney for guidance on your specific situation.
Detailed Answer
When someone dies without a will in South Dakota, their property passes by intestate succession under Title 29A of the South Dakota Codified Laws. The surviving spouse’s share is fixed by SDCL 29A-2-102. That section dictates:
- If the decedent is survived by a spouse and no descendants or parents, the spouse receives the entire estate.
- If survived by a spouse and descendants who are also the spouse’s descendants, the spouse receives the entire estate.
- If there are descendants of the decedent not related to the surviving spouse, the spouse’s share is one-half of the intestate estate.
- If there are non-spouse descendants, the spouse’s share is one-third of the intestate estate.
South Dakota abolished dower and curtsey, so there is no statutory right to elect a life estate in lieu of an intestate share. Instead, the spouse and other heirs receive the shares prescribed by statute.
In addition to the intestate share, the surviving spouse may claim certain allowances:
- Homestead Allowance: Up to $60,000 in value under SDCL 29A-2-308.
- Exempt Property: Household furniture and personal effects up to $15,000 under SDCL 29A-2-302.
- Family Allowance: A reasonable allowance for support during estate administration under SDCL 29A-2-305.
Because South Dakota law does not permit a statutory election to convert an intestate share into a life estate, heirs cannot force such an election. However, all heirs may agree to a voluntary partition of real property and grant life estates by deed under SDCL 29A-5-505.
Helpful Hints
- Review SDCL Title 29A, Chapter 2 to understand intestate shares before making decisions.
- List all potential heirs and calculate each statutory share to assess interests.
- Account for homestead and exempt property allowances when dividing assets.
- Discuss voluntary life-estate agreements or partitions early with co-heirs.
- Consult a South Dakota probate attorney to handle court filings and deadlines.