South Dakota's Intestacy Laws
If you die without a valid will while residing in the State of South Dakota , you are said to have died "intestate." In order to determine who will receive your property if you die intestate, the State of South Dakota has established a number of laws (known as "intestacy laws" or "laws of intestate succession.") The primary statutes comprising these intestacy laws, or laws of intestate succession, are set forth below. For a more complete list, see South Dakota Intestacy Laws | Intestate Succession statutes.
29A-2-101. Intestate estate.
(a) Any part of a decedent's estate not effectively disposed of by will or otherwise passes by intestate succession to the decedent's heirs as prescribed in this code, except as modified by the decedent's will.
(b) A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent's intestate estate to which that individual or class would have succeeded passes as if that individual or all members of that class had disclaimed their intestate shares.
29A-2-102. Share of the spouse.
The intestate share of a decedent's surviving spouse is:
(1) The entire intestate estate if:
(i) No descendant of the decedent survives the decedent; or
(ii) All of the decedent's surviving descendants are also descendants of the surviving spouse;
(2) The first $100,000, plus one-half of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse.
29A-2-103. Shares of heirs other than surviving spouse.
Any part of the intestate estate not passing to the decedent's surviving spouse under § 29A-2-102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:
(1) To the decedent's descendants by representation;
(2) If there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent;
(3) If there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation;
(4) If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or by representation to the descendants of the decedent's paternal grandparents or either of them if both are deceased; and the other half passes to the decedent's maternal relatives in the same manner; but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.
29A-2-104. Requirement that heir survive decedent for 120 hours.
An individual who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property, and intestate succession, and the decedent's heirs are determined accordingly. This section is not to be applied if its application would result in a taking of intestate estate by the state under § 29A-2-105.
29A-2-105. No taker.
If there is no taker under the provisions of this chapter, the intestate estate passes to the State of South Dakota as provided in § 29A-3-914.
(a) If, under § 29A-2-103(1), a decedent's intestate share or a part thereof passes "by representation" to the decedent's descendants, the estate or part thereof is divided into as many equal shares as there are (i) surviving children of the decedent, if any, and (ii) 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.
(b) If, under § 29A-2-103(3) or (4), a decedent's intestate estate or a part thereof passes "by representation" to the descendants of the decedent's parents or either of them or to the descendants of the decedent's paternal or maternal grandparents or either of them, the estate or part thereof is divided into as many equal shares as there are (i) children of the designated ancestor or ancestors who survived the decedent, if any, and (ii) children of the designated ancestor or ancestors 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.
29A-2-107. Kindred of half blood.
Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
29A-2-108. Afterborn heirs.
An individual is treated as living at that time if the individual was conceived prior to a decedent's death, born within ten months of a decedent's death, and survived one hundred twenty hours or more after birth.
(a) If an individual dies intestate as to all or a portion of that individual's estate, property the decedent gave during the decedent's lifetime to an individual who, at the decedent's death, is an heir is treated as an advancement against the heir's intestate share only if (i) the decedent declared in a writing or the heir acknowledged in writing that the gift is an advancement or (ii) the decedent's writing or the heir's written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent's intestate estate.
(b) For purposes of subsection (a), property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of the decedent's death, whichever first occurs.
(c) If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent's intestate estate, unless the decedent's writing provides otherwise.
29A-2-110. Debts to decedent.
A debt owed to a decedent is not charged against the intestate share of any individual except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor's descendants.
No individual is disqualified to take as an heir because that individual or another individual through whom that individual claims is or has been an alien.
29A-2-112. Dower and curtesy abolished.
Dower and curtesy are abolished.
29A-2-113. Individual related to decedent through two lines.
An individual who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship that would entitle the individual to the larger share.
29A-2-114. Parent and child relationships.
(a) For purposes of intestate succession by, from, or through a person, and except as provided in subsection (b), an individual born out of wedlock is the child of that individual's birth parents. However, inheritance from or through the child by a birth parent or that birth parent's kindred is precluded unless that birth parent has openly treated the child as kindred, and has not refused to support the child.
(b) For purposes of intestate succession by, from, or through a person, an adopted individual is the child of that individual's adopting parent or parents and not of that individual's birth parents, except that:
(1) Adoption of a child by the spouse of a birth parent has no effect on (i) the relationship between the child and the birth parent whose spouse has adopted the child or (ii) the right of the child or a descendant of the child to inherit from or through the other birth parent; and
(2) Adoption of a child by a birth grandparent or a descendant of a birth grandparent of the child has no effect on the right of the child or a descendant of the child to inherit from or through either birth parent;
(c) The identity of the mother of an individual born out of wedlock is established by the birth of the child. The identity of the father may be established by the subsequent marriage of the parents, by a written acknowledgment by the father during the child's lifetime, by a judicial determination of paternity during the father's lifetime, or by a presentation of clear and convincing proof in the proceeding to settle the father's estate.
[Reference - South Dakota Intestacy Laws | Intestate Succession]