South Dakota Intestate Succession

When a South Dakota resident dies without a will, SDCL chapter 29A-2 decides who inherits, and the surviving spouse comes first. The spouse takes the entire intestate estate when every surviving child and grandchild of the decedent is also the spouse's descendant, or when no descendant survives at all. When the decedent leaves a child from another relationship, the spouse takes the first $100,000 plus one-half of the rest, and the decedent's descendants share the other half.

That is the whole spouse rule. SDCL 29A-2-102 has carried the same wording since South Dakota enacted it in 1995 (SL 1995, ch 167), and no act has amended it since. Many summaries online quote a different dollar schedule, with tiers of $150,000 and more and a share for the decedent's parents. That schedule comes from a later version of the Uniform Probate Code that South Dakota did not adopt. In South Dakota, a surviving parent takes nothing when a spouse survives.

This page answers the distribution question: who gets what. For how the estate actually moves through court, read the South Dakota probate process.

What Intestate Succession Covers

Under SDCL 29A-2-101(a), any part of an estate that a will does not effectively dispose of passes to the heirs the code names. So these rules apply in two situations: when there is no will at all, and when a will leaves some property out.

Section 29A-2-101(b) adds a twist. A will can expressly cut an heir out of any leftover intestate property, even if the will gives that property to nobody. The excluded heir's share then passes as if that person had disclaimed it.

Intestate succession reaches probate property only. Assets that name their own taker skip these rules:

• life insurance and retirement accounts with a named beneficiary
• joint tenancy property with right of survivorship
• payable-on-death and transfer-on-death registrations
• real estate covered by a recorded transfer-on-death deed
• anything already owned by a trust

A beneficiary designation beats the heir list every time. A policy that names the decedent's brother pays the brother, even if the spouse would take the whole estate by intestacy.

The Surviving Spouse Share

SDCL 29A-2-102 has two branches, and the only question is whose descendants survive.

Four consequences follow from that table.

Parents get nothing when a spouse survives. A married person with no children leaves everything to the spouse, even if both of the decedent's parents are alive.

The spouse's own children from an earlier relationship do not shrink the share. The statute looks only at the decedent's descendants. If every child the decedent left is also the spouse's child, the spouse takes everything, whatever children the spouse has from someone else.

One stepchild changes the math for the whole estate. A single child of the decedent from a prior relationship moves the spouse from the first branch to the second. The shared children do not keep the spouse on the first branch.

Small estates still go entirely to the spouse. Under the second branch, the spouse takes the first $100,000 before anyone else takes anything. An intestate estate of $100,000 or less passes to the spouse in full, even in a blended family.

The intestate share is only one of the spouse's rights. The homestead allowance, exempt property and the family allowance come on top of it, and a spouse left out of a will has an elective share instead. See what the surviving spouse gets for those claims.

To see these shares applied to one family, the South Dakota inheritance calculator asks who survived and splits the estate under the same intestacy rules.

Who Inherits When There Is No Spouse, or After the Spouse's Share

SDCL 29A-2-103 governs whatever the spouse does not take, or the entire estate when no spouse survives. Each class takes only if every class above it is empty.

1. Descendants. Children take by representation, with grandchildren and later generations stepping into a deceased child's place. (29A-2-103(1))
2. Parents. Both parents take equally, or the surviving parent takes it all. (29A-2-103(2))
3. Descendants of the parents. Brothers and sisters, and the children and grandchildren of a deceased brother or sister, take by representation. (29A-2-103(3))
4. Grandparents and their descendants. Half of the estate goes to the paternal side and half to the maternal side. On each side the grandparents take equally if both survive, or the surviving grandparent takes, or, if both are deceased, their descendants take by representation. If one side has no surviving grandparent or descendant of a grandparent, the whole estate goes to the other side. (29A-2-103(4))

The list ends there. South Dakota has no class for great-grandparents or more distant kin, and no class for a stepchild or the relatives of a deceased spouse. A stepchild who was never adopted does not inherit from a stepparent under this section.

When a spouse takes the first $100,000 plus half, the other half goes to all of the decedent's descendants by representation. That includes the children the decedent shared with the spouse, not only the child from the earlier relationship.

How Representation Works: A Per Stirpes Split

SDCL 29A-2-106(a) divides a descendants' share at the children's generation. The estate splits into as many equal shares as there are surviving children, plus children who died first but left descendants who survive. Each surviving child takes one share. A deceased child's share passes down that child's line, split the same way at each generation until it reaches living people.

That is a per stirpes structure, and South Dakota says so in its own code. SDCL 29A-2-709 applies the identical method when a will or trust calls for a gift "by representation" or "per stirpes." For relatives further out, 29A-2-106(b) uses the same method, dividing at the generation of the children of the parents or grandparents.

Here is how it plays out. A widowed South Dakota resident dies without a will, leaving $300,000 in probate property and three children.

• Ana survives.
• Ben died earlier and left two children.
• Cal died earlier and left one child.

The split happens at the children's level, so there are three shares of $100,000. Ana takes $100,000. Ben's two children split Ben's share, $50,000 each. Cal's only child takes all of Cal's $100,000.

Now change one fact. Ana also died before her parent and left no children. South Dakota still divides at the children's generation, even though no child survives. Only Ben and Cal left descendants, so the estate splits into two shares of $150,000. Ben's two children take $75,000 each, and Cal's child takes $150,000.

This is where South Dakota parts company with many other states. Under the later Uniform Probate Code method, called per capita at each generation, those three grandchildren would share equally at $100,000 each. Under South Dakota's statute, cousins in the same generation can take unequal amounts because each inherits through a different parent. A summary written for another state can get this answer wrong by tens of thousands of dollars.

Worked Example: A Blended Family

Say a married South Dakota resident dies without a will, leaving $400,000 in probate property after debts. Two children survive: Dana, whom the decedent had with the surviving spouse, and Eli, from an earlier marriage.

Eli is not the spouse's descendant, so 29A-2-102(2) applies.

• The spouse takes the first $100,000.
• That leaves a $300,000 balance. The spouse takes one-half, $150,000.
• The spouse's total is $250,000.
• The other $150,000 passes to the decedent's descendants by representation under 29A-2-103(1). Dana and Eli take $75,000 each.

Now suppose Eli had died before the decedent without leaving any children. Every surviving descendant is then also the spouse's descendant, so 29A-2-102(1)(ii) gives the spouse the entire $400,000 and Dana takes nothing by intestacy.

One more version. If the estate held only $80,000, the spouse would take all of it even with Eli alive, because the spouse's first $100,000 absorbs the whole estate.

Other Rules That Change Who Counts as an Heir

120-hour survival. Under SDCL 29A-2-104, a person who does not outlive the decedent by 120 hours is treated as having died first for intestate succession, the homestead allowance and exempt property. SDCL 29A-2-702(a) sets the same 120-hour rule for the rest of the code. Section 29A-2-104 does not apply if applying it would send the estate to the state.

Half-blood relatives. Under 29A-2-107, a half brother or half sister inherits the same share as a full sibling.

Children born after the death. Under 29A-2-108, a person conceived before the decedent's death is treated as living at the death if born within ten months of it and survives at least 120 hours after birth.

Adopted children. Under 29A-2-114(b), an adopted person is the child of the adopting parents and not of the birth parents. Two exceptions keep the birth-family tie. Adoption by a birth parent's spouse does not cut off that birth parent, or the child's right to inherit through the other birth parent. Adoption by a grandparent, or by a descendant of a grandparent, does not cut off inheritance through either birth parent.

Children of unmarried parents. Under 29A-2-114(a) and (c), a child born outside marriage is the child of the birth parents. The mother is established by the birth. The father can be established by the parents' later marriage, a written acknowledgment during the child's lifetime, a court finding of paternity during the father's lifetime, or clear and convincing proof in the father's estate proceeding. A birth parent cannot inherit from the child unless that parent openly treated the child as kin and did not refuse to support the child.

Relatives through two lines. Under 29A-2-113, a person related to the decedent in two ways takes one share, the larger of the two.

Lifetime gifts. Under 29A-2-109, a gift made during life counts against an heir's share only if the decedent or the heir said so in writing.

Debts owed to the decedent. Under 29A-2-110, a debt counts only against the debtor's own share. It is not charged against the debtor's children if the debtor died first.

Divorce. Under 29A-2-802, a former spouse is not a surviving spouse. A decree of separation that leaves the marriage in place is not a divorce, so a separated spouse still inherits.

Homicide. Under 29A-2-803(b), a person who feloniously and intentionally kills the decedent forfeits the intestate share, and the estate passes as if the killer had disclaimed it. A final criminal conviction settles the question. Without one, 29A-2-803(g) lets the probate court decide it by a preponderance of the evidence.

Turning down a share. Under 29A-2-801(b), an heir can disclaim an intestate share in a writing filed with the clerk of court within nine months after the death. The disclaimed share passes as if that heir had died first.

When No Heir Survives

If no one in any class of 29A-2-103 survives, SDCL 29A-2-105 sends the estate to the State of South Dakota as provided in 29A-3-914. That section vests the property in the state for the support of the common schools. The court order must say that a claim to the share can be brought within ten years after the order, in the manner chapter 21-36 provides for escheat actions.

The same section covers an heir who exists but cannot be found. The personal representative pays that heir's share to the heir's conservator if there is one. Otherwise the court orders the share to the state on the same ten-year terms.

How an Intestate Estate Gets Settled

The statutes name the heirs. Someone still has to collect the property and hand it over, and that usually means opening the estate in the circuit court for the county where the decedent lived. Under SDCL 29A-3-203(a), when there is no will the surviving spouse has priority to serve as personal representative, then the other heirs. Forty-five days after the death, any other qualified person can apply. The person appointed carries the same personal representative duties that apply when there is a will.

Smaller estates can skip that step. Under SDCL 29A-3-1201, once 30 days have passed since the death, an heir can collect personal property by affidavit if the value of the entire estate, wherever located, less liens and encumbrances, does not exceed $100,000. The affidavit must also state that no petition for a personal representative is pending or granted, and that the decedent owed no debt to the Department of Social Services for nursing home or other institutional medical care. SDCL 29A-3-1203 adds a separate affidavit for South Dakota real property worth $50,000 or less, filed with the register of deeds after 60 days. See collecting a small estate as an heir for both routes.

The heirs' shares also sit behind the family's statutory allowances. Under SDCL 29A-2-402 and 29A-2-403, the homestead allowance, exempt property and a family allowance come out of the estate first and are not charged against the spouse's or children's intestate share. The personal representative can set the family allowance at up to $18,000 in a lump sum, or $1,500 a month for one year, without court approval.

If these default rules would send property somewhere the owner would not choose, the fix is a will. Make a South Dakota will instead covers witnesses, handwritten wills and self-proving affidavits.

When to Get Help

Plenty of South Dakota intestate estates divide straight off the statute. Talk with a licensed South Dakota attorney when:

• the decedent left a child from an earlier relationship and the estate is worth more than $100,000
• a child died before the parent and the per stirpes split runs across several branches
• deaths close together raise a 120-hour survival question
• the family disputes paternity, an adoption, or whether someone was a surviving spouse
• an heir cannot be found, or the family tree is unclear
• a lifetime gift or a loan to an heir might be counted against a share

This guide helps you organize the statutory shares and the questions worth asking. Confirm anything that affects a particular estate with the court handling it or a licensed South Dakota attorney.

Frequently Asked Questions

Does the surviving spouse get everything in South Dakota without a will?

Often, yes. Under SDCL 29A-2-102(1), the spouse takes the entire intestate estate when no descendant of the decedent survives, or when every surviving descendant is also the spouse's descendant. The spouse takes less only when the decedent leaves a descendant who is not the spouse's, such as a child from an earlier marriage.

How much does the spouse get when there is a child from another relationship?

The first $100,000 plus one-half of the balance, under SDCL 29A-2-102(2). On a $400,000 estate, that is $250,000 to the spouse and $150,000 to the decedent's descendants, shared by representation among all of them.

Do parents inherit in South Dakota if there is a spouse?

No. South Dakota's spouse share has no parent tier. Parents inherit under SDCL 29A-2-103(2) only when the decedent leaves no spouse and no descendants.

Does South Dakota use per stirpes?

Yes, in structure. SDCL 29A-2-106 divides a descendants' share at the children's generation and passes each deceased child's share down that child's line. SDCL 29A-2-709 treats "by representation" and "per stirpes" in a will or trust the same way.

Do stepchildren inherit in South Dakota without a will?

No, unless the stepparent adopted them. SDCL 29A-2-103 names descendants, parents, the parents' descendants, and grandparents and their descendants, with no class for stepchildren.

Sources:

• Title: SDCL 29A-2-101, Intestate estate. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167, accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-101
• Title: SDCL 29A-2-102, Share of the spouse. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167, accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-102
• Title: SDCL 29A-2-103, Shares of heirs other than surviving spouse. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167, accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-103
• Title: SDCL 29A-2-104, Requirement that heir survive decedent for 120 hours. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167, accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-104
• Title: SDCL 29A-2-105, No taker. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167, accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-105
• Title: SDCL 29A-2-106, Representation. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167, accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-106
• Title: SDCL 29A-2-108, Afterborn heirs. Publisher: South Dakota Legislature. Publication Date: SL 2007, ch 247, accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-108
• Title: SDCL 29A-2-114, Parent and child relationships. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167, accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-114
• Title: SDCL 29A-2-403, Family allowance. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167, accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-403
• Title: SDCL 29A-2-702, Requirement of survival by 120 hours. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167, accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-702
• Title: SDCL 29A-2-709, Distribution by representation or per stirpes. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167, accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-709
• Title: SDCL 29A-2-801, Disclaimer of property interest. Publisher: South Dakota Legislature. Publication Date: SL 2002, ch 100, accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-801
• Title: SDCL 29A-2-803, Effect of homicide on intestate succession, wills, trusts, joint assets, life insurance, and beneficiary designations. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167, accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-803
• Title: SDCL 29A-3-203, Priority among persons seeking appointment as personal representative. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167, accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-3-203
• Title: SDCL 29A-3-914, Disposition of unclaimed assets. Publisher: South Dakota Legislature. Publication Date: SL 1994, ch 232, accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-3-914
• Title: SDCL 29A-3-1201, Collection of personal property by affidavit. Publisher: South Dakota Legislature. Publication Date: SL 2022, ch 88, accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-3-1201

It is not legal advice.