Who Are Next Of Kin In South Dakota?

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“Next of kin” in South Dakota means the closest relatives to the decedent under the laws of intestate succession and includes:

  1. Surviving spouse
  2. Descendants
  3. Parents
  4. Siblings
  5. Grandparents

 

South Dakota’s laws of intestate succession apply when a decedent dies without a valid will, or if decedent’s will does not effectively dispose of decedent’s probate assets.

What Next Of Kin Inherit Under South Dakota Intestate Succession Law?

The next of kin intestate heirs that are in line to inherit from a decedent’s estate depends upon the other survivors of the decedent, as set forth in the chart below.

Survivors Of the Decedent

Share of Intestate Estate

Surviving spouse, no descendants

–      Spouse inherits entire intestate estate

Surviving spouse, descendants who are all also descendants of surviving spouse

–      Spouse inherits entire intestate estate

Surviving spouse and descendants, and one or more of decedents surviving descendants are not descendants of the surviving spouse

–      Spouse inherits first $100,000, plus ½ of any balance of the intestate estate

–      Descendants inherit remaining balance by representation

Descendants, no spouse

–      Descendants inherit the intestate estate by representation

Parents, no spouse, no descendants

–      Parents inherit intestate estate equally if both survive, or to the surviving parent

Siblings, no parents, no spouse, no descendants

–      Siblings inherit intestate estate by representation

Grandparents

–      ½ of estate to paternal grandparents equally if both survive, or to surviving paternal grandparent, or by representation to the descendants of the decedent’s paternal grandparents

–      Other ½ passes to maternal grandparents in same manner

–      If no surviving grandparent or descendant of grandparent on either paternal or maternal side, then entire estate passes to the decedent’s relatives on the other side in the same manner as the ½

You can find South Dakota’s intestate succession laws at SD Codified L § 29A-2-102 and § 29A-2-103.

What Do Next Of Kin Inherit In South Dakota?

Next of kin intestate heirs inherit from the intestate probate estate.  The probate estate includes a decedent’s assets that did not pass by virtue of their titling or beneficiary designation at death.

Examples of non-probate assets that are not controlled by South Dakota intestate succession law include bank accounts with designated pay on death beneficiaries, most life insurance policies, and assets held in revocable trusts.  See the Probate and Non-Probate Assets Chart.

What Does It Mean To Take By “Representation” Under South Dakota Law?

If a decedent’s intestate estate passes “by representation” to the decedent’s descendants, the estate is divided into as many equal shares as there are (1) surviving children of the decedent, if any, and (2) children of the decedent who failed to survive the decedent but who left descendants who survive the decedent.

Each surviving child is allocated one share.  The share of each child who failed to survive the decedent but who left descendants who survive the decedent is divided in the same manner, with subdivision repeating at each succeeding generation until the share is fully allocated among surviving descendants.

South Dakota law regarding representation for purposes of intestate inheritance can be found at SD Codified L § 29A-2-106.

Does the State Of South Dakota Ever Get a Decedent’s Property?

While it is possible that a decedent’s property passes to the State of South Dakota, it is rare.  South Dakota intestate succession law provides for even the most distant next of kin relatives to inherit from a decedent’s estate.  However, if there is no taker under South Dakota intestate succession law, the intestate estate passes to the State of South Dakota.  See SD Codified L § 29A-2-105.

South Dakota Survivorship Period

Like many states, South Dakota has a 120 hour survivorship period for purposes of intestate succession.  If a next of kin intestate heir does not survive the decedent by 120 hours, that heir is deemed to have predeceased the decedent for purposes of intestate succession.

A South Dakota probate lawyer can help you determine your status and rights as next of kin.

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