Short answer
No — in South Dakota, wrongful death proceeds generally do not pass under the decedent’s will. South Dakota separates a wrongful death claim (which compensates surviving family members for their loss) from a survival action (which belongs to the decedent’s estate). Wrongful death damages are distributed according to South Dakota wrongful-death law, not the decedent’s Last Will and Testament. For related survival-action recoveries, the decedent’s estate and its administration (and thus the will) can control distribution.
Detailed answer — how South Dakota law treats wrongful death and estate claims
To understand who gets money after a wrongful death in South Dakota, you must distinguish two different legal claims that often arise after a person’s death:
- Wrongful death claim: This cause of action is brought because the death deprived certain survivors of support, companionship, or services. The award is designed to compensate survivors for their losses. South Dakota’s wrongful death statutes and case law govern who can sue and how damages are apportioned. See South Dakota’s wrongful death chapter for statutory rules and definitions: SDCL Chapter 21-5 (Wrongful Death & Survival Actions).
- Survival action: This is a claim that belongs to the decedent’s estate for harms the decedent suffered before death (for example, pain and suffering, medical expenses billed to the decedent, or pre-death lost earnings). Proceeds from a successful survival action become part of the decedent’s estate and are distributed under the probate rules — including under the terms of a valid will or, if there is no will, under South Dakota’s intestacy rules. See South Dakota probate law (Title 29A): SDCL Title 29A (Wills, Trusts, and Administration).
Effect of a Last Will and Testament
Because wrongful death damages are intended to compensate surviving family members for their own losses, these damages typically pass under the wrongful-death statute to the statutory beneficiaries (for example, spouse and children) rather than under the decedent’s will. In contrast, survival-action recoveries are assets of the estate and therefore pass according to the will (or intestacy rules if there is no will).
Who receives wrongful death proceeds in South Dakota?
South Dakota statutes set out who may bring a wrongful death action and how recovery is allocated. Generally, the closest survivors (spouse and children) have priority to seek and receive wrongful death damages. If there are no spouse or children, other relatives may have a claim. The courts or statute usually specify how the recovery is divided among multiple claimants. See: SDCL Chapter 21-5 for details.
Common fact patterns (hypotheticals)
- Hypothetical A — Wife named as sole beneficiary in the decedent’s will: If the decedent is killed in an accident and the decedent’s adult children bring a wrongful-death claim, the money awarded for wrongful death generally goes to the statutory survivors (for example, spouse and children) according to the wrongful-death rules — not solely to the person named in the will.
- Hypothetical B — Estate recovers for medical bills and the decedent’s pain before death: A survival-action portion (medical bills or pre-death pain and suffering) belongs to the decedent’s estate. That portion becomes part of the probate estate and is distributed under the will or intestacy law.
- Hypothetical C — No surviving spouse or children: If no immediate family survives, other relatives (parents, siblings) may have a wrongful-death claim under South Dakota law; the statutory scheme determines priority.
Practical consequences
- If you are a surviving family member and expect to receive wrongful death proceeds, do not assume the decedent’s will controls the distribution.
- If you are the personal representative for the estate, understand that the estate can pursue survival claims (which may increase estate assets), but wrongful death claims for survivors are separate and usually do not become estate property.
- Parties sometimes negotiate or settle claims so money is split in an agreed way; however, settlements often must respect statutory rights of survivors and the estate.
What you should do next
- Preserve evidence and timelines: preserve medical records, bills, police reports, and witness information.
- Identify the types of claims: determine whether you or the estate has a wrongful death claim, a survival claim, or both.
- Contact a South Dakota attorney experienced in wrongful death and probate: they can explain how SDCL Chapter 21-5 applies in your case and whether the estate has surviving claims under Title 29A.
- Beware of deadlines: South Dakota imposes time limits for bringing wrongful death and other tort claims. Acting promptly protects legal rights; see the wrongful death chapter for statutory rules: SDCL Chapter 21-5.
Helpful Hints
- Understand the two-track framework: wrongful death (for survivors) vs survival actions (for the estate).
- Do not assume the will overrides statutory survivor rights — it usually does not for wrongful death damages.
- Ask whether any settlement will require court approval or affect probate administration.
- Keep careful records of expenses related to the decedent’s final injury and death—these can matter for both survival and wrongful death claims.
- If multiple survivors exist, expect allocation disputes; a lawyer can help negotiate or litigate distribution.
- Rely on the statutory text for binding rules: start with SDCL Chapter 21-5 and South Dakota’s probate provisions under SDCL Title 29A.
Disclaimer: This article provides general information about South Dakota law and is not legal advice. It does not create an attorney-client relationship. For advice about a specific situation, consult a licensed South Dakota attorney who handles wrongful death and probate matters.