Skip to main content
South Dakota Family Allowance
Support GuideSouth Dakota12 min read

South Dakota Family Allowance

South Dakota gives a spouse and supported children a family allowance. The $18,000 in SDCL 29A-2-403 limits the executor, not the court.

By Settled Editorial

The South Dakota family allowance is money for a surviving spouse and dependent children to live on while the estate is open. SDCL 29A-2-403 entitles them to a reasonable allowance in money out of the estate for their maintenance during administration. The figure people quote, $18,000, is only the most the personal representative may set without court approval. The circuit court can set a different amount on a petition.

South Dakota puts the whole rule in one section. The entitlement, the $18,000 lump sum, the $1,500 monthly installment, the priority over creditors, the death rule and the route to court all sit in SDCL 29A-2-403, which the Legislature enacted as SL 1995, ch 167 and has not amended since. Every rule below was read on September 27, 2026 through the South Dakota Legislature's own statute service, with each section's source line checked for later session laws.

South Dakota probate runs through the circuit court, and the South Dakota court directory shows which county courthouse holds the file. This page explains the statute for a general reader. It is not legal advice.

The Allowance Is Reasonable, And $18,000 Limits Only The Personal Representative

Subsection (a) sets the standard: a reasonable family allowance in money for maintenance during the period of administration. It names no dollar figure.

Subsection (b) is where the numbers appear, and it speaks to the personal representative alone. Without court approval, the personal representative may determine the family allowance:

FormCeiling without court approval
Lump sum$18,000
Installments$1,500 per month for one year

The two ceilings reach the same total. Twelve payments of $1,500 come to $18,000, so choosing installments changes when the money arrives, not how much. A family with a steady bill such as rent or a mortgage payment may prefer the monthly route. A family facing one large cost may prefer the lump sum.

Subsection (f) opens the door past both figures. The personal representative, or any interested person aggrieved by a determination, payment, proposed payment or failure to act, may petition the court for appropriate relief. That relief may include a family allowance other than the one the personal representative determined or could have determined. So a spouse whose household needs more than $18,000 while the estate is open can ask the court for more, and an heir who thinks the allowance is too large for the estate can ask for less.

The statute ties the allowance to maintenance during administration, so evidence of the household's real expenses and of how long the estate will stay open supports the request. The South Dakota executor duties guide covers the personal representative's wider job, including when the personal representative pays it.

Do you need probate in South Dakota?

Answer a few questions to see whether South Dakota probate is required and which process applies.

Take the 2-minute assessment

Who Is Entitled, And Who Receives The Money

SDCL 29A-2-403(a) names three groups:

  1. The decedent's surviving spouse.
  2. The minor children the decedent was obligated to support.
  3. The children the decedent was in fact supporting.

The third group reaches past legal duty. An adult child with a disability who lived on the decedent's support, or a child the decedent supported without a court order, can qualify by fact alone.

Subsection (c) then sets who gets paid. The allowance goes to the surviving spouse, if living, for the use of the spouse and any minor or dependent children. With no spouse, it goes to the children, their guardian or conservator, or the persons who have their care and custody. If a minor or dependent child does not live with the surviving spouse, the allowance may be paid partly to that child or the child's caregiver and partly to the spouse, as their needs may appear. That covers a child of an earlier marriage living with the other parent.

SDCL 29A-2-401 sets the reach of the section. It applies to the estate of a decedent who died domiciled in South Dakota. For a decedent domiciled elsewhere, the law of that state governs the family allowance, even when South Dakota land is being probated here.

Where It Ranks Against Creditors

SDCL 29A-2-403(d) makes the family allowance exempt from and prior to all claims except the homestead and exempt property allowances.

The definition of claims makes that rank broader than it first looks. SDCL 29A-1-201 defines claims, for a decedent's estate, to include liabilities arising at or after death, including funeral expenses and expenses of administration. So the family allowance comes ahead of every class in the claim order set by SDCL 29A-3-805:

  1. Costs and expenses of administration.
  2. Reasonable funeral expenses.
  3. Debts and taxes with preference under federal law.
  4. Debts and taxes with preference under other South Dakota laws.
  5. All other claims.

Only the two allowances in SDCL 29A-2-402 come first. The homestead allowance there is not a dollar amount: the statute points to chapter 43-31, which lets the survivor keep possessing and occupying the homestead. Exempt property is the property and cash that chapter 43-45 describes. The South Dakota exempt property guide explains the homestead and exempt property that rank first. A personal representative who pays the claim order in South Dakota without setting aside the allowances can pay out money the family was owed first.

The allowance stays protected after distribution. SDCL 29A-3-1004 says no distributee is liable to claimants for amounts received as homestead or family allowances, so a creditor who turns up after distribution cannot recover the allowance from the family.

It Comes On Top Of The Will, Intestacy And The Elective Share

SDCL 29A-2-403(e) says the family allowance is not chargeable against any benefit or share passing to the spouse or children:

  • by the decedent's will, unless the will provides otherwise;
  • by intestate succession; or
  • by way of elective share.

The elective share section says the same thing from the other side. SDCL 29A-2-202(c) states that when a spouse elects, the homestead allowance, exempt property and family allowance are not charged against the elective share and supplemental elective share but come in addition to them. SDCL 29A-2-204 reduces the decedent's probate estate by the family allowances before the augmented estate is measured. The elective share schedule and its nine-month clock are covered with the spouse's other rights.

A will can change the charging rule only. The words "unless otherwise provided" in subsection (e) let a will say the allowance counts against a gift under that will. Nothing in SDCL 29A-2-403 lets a will take the allowance away.

How It Is Paid

The allowance is money, but SDCL 29A-3-906(a)(2) lets the personal representative satisfy a family allowance in kind with estate property if three conditions hold: the person entitled has not demanded cash, the property is valued at fair market value on the date of distribution, and no residuary devisee has asked that the asset stay in the residue. A spouse who wants cash can say so and block an in-kind payment.

The allowance also works outside a formal probate. A successor collecting personal property by affidavit under SDCL 29A-3-1202 must apply what is received to liens, the homestead allowance, exempt property, the family allowance, funeral expenses, expenses of administration and creditor claims, as required by law. A successor filing the real-property affidavit under SDCL 29A-3-1203 may claim the land because of the family allowance under SDCL 29A-2-403. Both affidavits have their own caps and conditions, explained in the South Dakota small estate guide.

When The Right Ends

The allowance runs for the period of administration. SDCL 29A-2-403 sets no application deadline, and because the allowance is tied to administration, the request belongs before the estate closes.

Death ends it. SDCL 29A-2-403(e) says the death of any person entitled to the family allowance terminates that person's right to allowances not yet paid. The sentence names any person entitled, and South Dakota's section makes no exception for the surviving spouse. A widow receiving $1,500 a month who dies in month five keeps what she received, and the remaining installments stop. A lump sum paid at the start of administration is already hers.

Two other events remove the right entirely:

  • Waiver. SDCL 29A-2-213 lets a spouse waive the family allowance, wholly or partly, before or after marriage, in a signed written contract, agreement or waiver. A waiver of "all rights", or a complete property settlement entered into after or in anticipation of separation or divorce, waives it unless the document provides to the contrary. Subsection (b) lets the spouse defeat a waiver that was not signed voluntarily, or one that was unconscionable when signed without fair disclosure.
  • Homicide. SDCL 29A-2-803 says a person who feloniously and intentionally kills the decedent forfeits all benefits in the estate, the family allowance among them.

South Dakota has no inheritance tax to reduce the payment. The Legislature repealed its inheritance and estate tax chapters in SL 2014, ch 59.

Common Questions

How much is the South Dakota family allowance?

SDCL 29A-2-403 entitles the family to a reasonable allowance in money for maintenance during administration, and it sets no fixed amount. The only dollar figures in the section limit what the personal representative may decide without court approval: a lump sum not exceeding $18,000, or installments not exceeding $1,500 a month for one year. Those figures have not changed since the section was enacted by SL 1995, ch 167.

Is the South Dakota family allowance capped at $18,000?

Only for a personal representative acting alone. SDCL 29A-2-403(f) lets the personal representative, or any interested person aggrieved by a determination, payment, proposed payment or failure to act, petition the court for relief, which may include a family allowance other than the one the personal representative determined or could have determined. So the circuit court can set a larger or smaller figure.

Who is entitled to the South Dakota family allowance?

The surviving spouse, the minor children the decedent was obligated to support, and the children the decedent was in fact supporting. SDCL 29A-2-403(c) pays it to the surviving spouse, if living, for the use of the spouse and any minor or dependent children. If a minor or dependent child lives elsewhere, the allowance may be split between the spouse and the child or the child's guardian, conservator or caregiver as their needs appear. SDCL 29A-2-401 limits the section to a decedent who died domiciled in South Dakota.

Does the family allowance come ahead of creditors in South Dakota?

Yes. SDCL 29A-2-403(d) makes the family allowance exempt from and prior to all claims except the homestead and exempt property allowances. SDCL 29A-1-201 defines claims to include funeral expenses and expenses of administration, so the family allowance also sits ahead of those and ahead of every class in the SDCL 29A-3-805 payment order.

Does taking a family allowance reduce what the spouse inherits?

No, unless the will says so. SDCL 29A-2-403(e) says the allowance is not chargeable against any share passing to the spouse or children by the will, by intestate succession or by elective share. SDCL 29A-2-202(c) repeats the point for a spouse who elects: the homestead allowance, exempt property and family allowance come in addition to the elective share.

What happens to the South Dakota family allowance if the spouse dies?

Unpaid allowances end. SDCL 29A-2-403(e) says the death of any person entitled to the family allowance terminates that person's right to allowances not yet paid. The section makes no exception for the surviving spouse, so amounts already paid stay paid and future installments stop.

Can a prenuptial agreement waive the family allowance in South Dakota?

Yes. SDCL 29A-2-213 lets a surviving spouse waive the family allowance, wholly or partially, before or after marriage, by a written contract, agreement or waiver the spouse signed. A waiver of all rights, or a complete property settlement entered into after or in anticipation of separation or divorce, waives the family allowance along with the elective share, homestead allowance and exempt property, unless it provides to the contrary.

Related Guides

Sources:

It is not legal advice.

Information current as of September 27, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in South Dakota can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

All South Dakota guides← Back to all articles

More South Dakota Resources

Explore the rest of the South Dakota probate hub.

Do I need probate?5 pages
For the executor4 pages
Money and taxes5 pages
Family and inheritance5 pages
Transfer assets5 pages
File and learn5 pages