The South Dakota Uniform Probate Code has built in rights for surviving spouses, including:
- Intestate Share
- Homestead Allowance
- Family Allowance
- Exempt Property
- Elective Share
The rights of surviving spouses in South Dakota (also referred to as widow’s rights) vary depending on whether the deceased spouse had a will, and whether the deceased spouse had descendants. When a surviving spouse is educated about his or her rights, the probate process is less daunting.
What If My Spouse Died Without A Valid Will?
When a married person dies without a valid will they are said to have died “intestate.” This means that the decedent’s assets will be distributed pursuant to South Dakota law. The surviving spouse of an intestate decedent is entitled to a share of the estate. The amount of the surviving spouse’s share depends on whether the decedent had living descendants. SD Codified L 29A-2-102.
Surviving Spouse Rights – No Surviving Descendants Or All The Same Descendants
If a South Dakota decedent dies intestate with a surviving spouse and no descendants, the surviving spouse receives the entire estate. The surviving spouse also receives the entire estate if all of the decedent’s descendants are also the surviving spouse’s descendants. If, however, the decedent has descendants from a different relationship, then the surviving spouse is not entitled to the entire estate.
Surviving Spouse Rights – Surviving Descendants From Someone Other Than Surviving Spouse
If a South Dakota decedent dies with descendants that are not also the descendants of the surviving spouse, then the surviving spouse receives the first $100,000 of the intestate property, and ½ of the balance. The remaining balance goes to the decedent’s descendants.
Surviving Spouse Allowances and Exemptions
A South Dakota surviving spouse also has rights to certain allowances and exemptions. The surviving spouse is entitled to:
- A homestead allowance (SD Codified L 29A-2-402);
- A reasonable family allowance in money from the estate for the surviving spouse’s maintenance during the estate administration, not to exceed $18,000 (SD Codified L 29A-2-403); and,
- Exempt Property and cash.
Elective Share Rights in South Dakota
A surviving spouse cannot be disinherited under South Dakota law. If a decedent does not provide for the surviving spouse in decedent’s will, or provides very little, the surviving spouse has the right to take an elective share. The South Dakota surviving spouse may take an elective share amount equal to the value of a fixed percentage of the augmented estate based on the marriage duration vesting schedule set forth below. SD Codified L 29A-2-202.
Less than 1 year………………………………………Supplemental Amount Only
1 year but less than 2 years ………………………….3% of the augmented estate
2 years but less than 3 years………………………….6% of the augmented estate
3 years but less than 4 years………………………….9% of the augmented estate
4 years but less than 5 years………………………….12% of the augmented estate
5 years but less than 6 years………………………….15% of the augmented estate
6 years but less than 7 years………………………….18% of the augmented estate
7 years but less than 8 years………………………….21% of the augmented estate
8 years but less than 9 years………………………….24% of the augmented estate
9 years but less than 10 years…………………………27% of the augmented estate
10 years but less than 11 years……………………….30% of the augmented estate
11 years but less than 12 years……………………….34% of the augmented estate
12 years but less than 13 years……………………….38% of the augmented estate
13 years but less than 14 years……………………….42% of the augmented estate
14 years but less than 15 years……………………….46% of the augmented estate
15 years or more………………………………………50% of the augmented estate
Property Subject To The Surviving Spouse’s Elective Share
The elective share of a surviving spouse in South Dakota is calculated using the value of the augmented estate. The decedent’s augmented estate includes all real and personal property included in the net probate estate, decedent’s non-probate transfers to others, decedent’s non-probate transfers to the surviving spouse, and spouse’s property. SD Codified L 29A-2-203.
Deadline For Surviving Spouse’s Election To Take Elective Share
A surviving spouse in South Dakota must elect to take an elective share within the later of nine months after the date of decedent’s death, or within four months after the decedent’s will is admitted to probate. SD Codified L 29A-2-211.
If the surviving spouse’s election is filed outside of the nine-month window or beyond the extended deadline, then decedent’s non-probate transfers to other people are not calculated as part of the augmented estate. Obviously this would likely decrease the surviving spouse’s elective share amount.
