South Dakota Surviving Spouse Rights

A South Dakota will generally cannot leave a surviving spouse with nothing, unless the spouse signed a valid waiver. SDCL 29A-2-202 gives the spouse a right to elect a share of the augmented estate, from 3% after one year of marriage up to 50% after 15 years, with a $50,000 floor at any length of marriage. On top of that share, the spouse can stay in the homestead, take exempt property and receive a family allowance during probate.

South Dakota is not a community property state, so the spouse does not start out owning half of what the couple earned. The elective share does that work instead, and it reaches property that passed outside the will, such as joint accounts and payable-on-death accounts left to other people. Every rule on this page was read in the South Dakota Codified Laws through the Legislature's official statute service on September 27, 2026, and each section is linked. The table sums it up.

Start With Whether There Is A Will

With no will, the spouse inherits under SDCL 29A-2-102. The spouse takes the entire estate if the decedent left no descendants, or if every surviving descendant is also the spouse's descendant. If the decedent left a child from another relationship, the spouse takes "the first $100,000, plus one-half of any balance." The spouse's share without a will has worked examples for a blended family.

With a will, the will controls unless one of two statutory mechanisms applies. The elective share is available by petition to a spouse the will leaves out or leaves little. A spouse who married the decedent after the will was signed may have an omitted spouse claim. Both turn on what the will says, so when the will leaves the spouse out is a good place to check how the will was made.

The Elective Share

SDCL 29A-2-202(a) gives the surviving spouse of a decedent who died domiciled in South Dakota a right to take "the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other." The schedule:

Each row runs to the next anniversary, so a marriage of 7 years and 11 months sits in the 21% row. Subsection (d) sends a decedent who died domiciled in another state to the law of that state, even for South Dakota property.

What goes into the augmented estate

The percentage applies to a bigger number than the probate estate. SDCL 29A-2-203 adds four pieces together:

1. The decedent's net probate estate. SDCL 29A-2-204 starts with the probate estate and subtracts funeral and administration expenses, the homestead allowance, family allowances, exempt property and enforceable claims.
2. The decedent's nonprobate transfers to others. SDCL 29A-2-205 pulls back property that passed outside probate to someone other than the spouse: the decedent's share of joint tenancy property, POD and TOD accounts, life insurance the decedent owned, and property the decedent gave away while keeping the income or a power to revoke. It also reaches gifts made during the marriage in the two years before death, to the extent the gifts to any one person in either year exceeded $10,000.
3. Nonprobate transfers to the spouse. SDCL 29A-2-206 counts what reached the spouse outside probate, such as a joint account the spouse now owns alone. Social Security is left out.
4. The spouse's own property. SDCL 29A-2-207 counts what the surviving spouse owned at the death, reduced by enforceable claims against the spouse. The homestead allowance, family allowance, exempt property and Social Security do not count.

SDCL 29A-2-208(a) leaves out a transfer the decedent was paid full value for, and a transfer the spouse joined in or consented to in writing. A spouse who co-signed a gift to a child cannot pull it back later.

Who pays the share

The elective-share amount is not all new money. SDCL 29A-2-209(a) applies three things first: what the spouse receives from the decedent by will, intestacy or nonprobate transfer; anything the spouse disclaimed; and part of the spouse's own property, up to twice the elective-share percentage. Only the shortfall comes from the probate estate and from the people who received nonprobate transfers, shared in proportion to what each received under subsections (b) and (c). SDCL 29A-2-210 makes those recipients liable for their part, and each may give back the property or pay its value.

Here is how the numbers work. A husband dies leaving a net probate estate of $600,000 by will to his children from a first marriage. His wife owns $200,000 in her own name, and nothing passed to her. The augmented estate is $800,000.

• Married 20 years. The percentage is 50%, so the elective-share amount is $400,000. Twice 50% is 100%, so all $200,000 of her own property counts first. The children's inheritance pays the other $200,000.
• Married 5 years. The percentage is 15%, so the elective-share amount is $120,000. Twice 15% is 30%, so $60,000 of her property counts first. The estate pays $60,000.

A spouse who already receives a large gift under the will gains little or nothing from electing, because those gifts count first.

The $50,000 supplemental amount

SDCL 29A-2-202(b) sets a floor. It adds the spouse's own property counted under 29A-2-207, what the spouse receives from the decedent, and the part of the elective share payable from the estate and from nonprobate transfers. If that sum is less than $50,000, the spouse may take "a supplemental elective-share amount equal to $50,000, minus the sum." Take a wife married eight months who owns $10,000 and whose husband's will leaves everything to his sister. She has no percentage share, and the supplemental amount is $40,000.

Electing does not cost the allowances

Subsection (c) says that if the spouse elects, "the surviving spouse's homestead allowance, exempt property, and family allowance, if any, are not charged against but are in addition to" the elective-share and supplemental amounts.

The Deadline To Petition

SDCL 29A-2-211(a) requires the spouse to file a petition for the elective share in the court and mail or deliver it to the personal representative, if there is one, "within nine months after the date of the decedent's death, or within four months after the admission to either informal or formal probate of the will," whichever runs out later.

Three parts of that rule catch families:

1. The later date wins, but only for the probate estate. Say a death on January 10, 2026 and a will admitted to probate on September 1, 2026. The nine-month date is October 10, 2026 and the four-month date is January 1, 2027. On those dates, a petition filed in December 2026 falls inside the probate-estate window. Subsection (a) also says the decedent's nonprobate transfers to others drop out of the augmented estate if the petition is filed more than nine months after the death, or beyond any extension the court granted under subsection (b). So a December petition can reach the will's property and cannot reach a joint account or a POD account that went to someone else.
2. An extension has its own nine-month limit. Under subsection (b), a petition to extend the time must be filed within nine months after the death, and the court may grant it for good cause. Notice goes to everyone interested in the nonprobate transfers.
3. Notice of the hearing is required. The spouse gives notice to the people interested in the estate and to anyone whose share the election would reduce. The spouse may withdraw the demand any time before the court's final determination under subsection (c), and the court orders payment after a hearing under subsection (d).

The petition goes to the circuit court handling the estate. South Dakota probate courts by county lists the Clerk of Courts office for each county.

Who can elect. SDCL 29A-2-212 lets the right be exercised by the surviving spouse, by the spouse's conservator, or by an agent under a power of attorney. If the spouse dies before the time to elect runs out, the spouse's own personal representative may make the election.

Homestead, Exempt Property And The Family Allowance

Three allowances sit on top of whatever the spouse takes by will, by intestacy or by election. Each has its own page, so this is the short version.

• Homestead. SDCL 29A-2-402 gives the homestead allowance "as provided in chapter 43-31," and SDCL 43-31-13 lets the survivor "continue to possess and occupy the whole homestead until it is otherwise disposed of according to law." It is a right to live in the home, not a dollar figure. SDCL 43-31-27 lets a will devise the homestead only "Subject to the rights of the surviving husband or wife."
• Exempt property. 29A-2-402 also gives the spouse the property and cash that chapter 43-45 describes as exempt, ahead of all claims. The homestead and exempt property page covers what that includes.
• Family allowance. SDCL 29A-2-403 allows a reasonable allowance in money for the spouse and dependent children during administration. The personal representative can set up to $18,000 as a lump sum or $1,500 a month for a year without court approval. The $18,000 family allowance explains when the court can set a different amount.

Married After The Will Was Signed

SDCL 29A-2-301(a) protects a spouse "who married the testator after the execution of the testator's will." That spouse receives, as an intestate share, "no less than the value of the share of the estate the surviving spouse would have received if the testator had died intestate." Three exceptions defeat the claim:

1. The will or other evidence shows the will was made in contemplation of the marriage.
2. The will says it stays effective despite any later marriage.
3. The testator provided for the spouse outside the will, and the testator's statements, the size of the transfer or other evidence show it was meant to replace a gift under the will.

Subsection (b) fills the share first from anything the will already gives the spouse. The rest comes from the other gifts in the abatement order of SDCL 29A-3-902: property the will does not dispose of, then the residue, then general gifts, then everything else.

Who Counts As A Surviving Spouse

These rights belong only to a legal surviving spouse.

• Divorce and annulment. SDCL 29A-2-802 says a person divorced from the decedent, or whose marriage was annulled, is not a surviving spouse unless they remarried each other. A decree of separation that leaves the marriage in place is not a divorce.
• Revocation by divorce. SDCL 29A-2-804(b) revokes gifts to a former spouse in a will, trust or other governing instrument signed before the divorce, and any nomination of the former spouse as personal representative, trustee, agent or guardian. It also turns joint tenancy between the former spouses into a tenancy in common.
• The 120-hour rule. SDCL 29A-2-104 treats a spouse who fails to survive the decedent by 120 hours as having died first for the homestead allowance, exempt property and intestate succession.
• Homicide. SDCL 29A-2-803(b) says a person who feloniously and intentionally kills the decedent forfeits the intestate share, the elective share, an omitted spouse's share, the homestead allowance, exempt property and the family allowance.

Signed Waivers And Prenuptial Agreements

SDCL 29A-2-213(a) lets a spouse waive the elective share, the homestead allowance, exempt property and the family allowance, wholly or partly, before or after the marriage, "by a written contract, agreement, or waiver signed by the surviving spouse."

Subsection (b) makes a waiver unenforceable if the spouse proves it was not signed voluntarily. It is also unenforceable if the spouse proves it was unconscionable when signed and that, beforehand, the spouse got no fair disclosure of the decedent's property and debts, did not waive that disclosure in writing, and had no adequate knowledge of them. The court decides unconscionability as a matter of law.

Subsection (d) reaches further than many couples expect. Unless it says otherwise, a waiver of "all rights," or a complete property settlement signed after or in anticipation of separation or divorce, waives the elective share and all three allowances. It also gives up what each spouse would take from the other by intestacy or under a will signed before the waiver.

South Dakota Special Spousal Trusts

A married couple can opt into community property treatment for chosen property. SDCL 55-17-1 makes an arrangement a South Dakota special spousal trust when one or both spouses transfer property to a trust that expressly declares it South Dakota special spousal property, both spouses sign the trust, and at least one trustee is a qualified person. SDCL 55-17-5, amended by SL 2026, ch 198, treats such a trust as established under the community property laws of South Dakota for purposes of 26 U.S.C. § 1014(b)(6), the federal basis rule for community property. This is a planning tool set up during life. It gives a surviving spouse nothing unless the couple created the trust before the death.

The Spouse's Place In Line To Serve

SDCL 29A-3-203(a) sets who has priority for appointment as personal representative. The person named in a probated will comes first. Next comes a surviving spouse who is also a devisee, then other devisees, then the surviving spouse, then other heirs. Any other qualified person may seek appointment 45 days after the death. South Dakota executor duties covers what the job involves.

Medicaid Can Reach The Surviving Spouse's Estate

South Dakota's estate recovery law reaches one step further than many readers expect. SDCL 28-6-23 makes certain medical assistance a debt to the Department of Social Services, including nursing facility care and, for a recipient 55 or older, home and community based services, hospital and prescription drug services. It lets the department "file a claim against the estate of the surviving spouse" of the recipient. For this section, a surviving spouse is someone who was married to the recipient when the recipient became eligible, did not divorce the recipient, and has not remarried since the death.

SDCL 28-6-23.1 gives the spouse a way to cap it. The spouse may petition the department "within six months of the date of death of the medical assistance recipient," and the responsibility of the spouse's estate then "may not exceed the value of the estate of the surviving spouse as of the date of death" of the recipient. That six-month window runs from the first spouse's death, long before the surviving spouse's own estate opens.

The Questions That Decide A Spouse's Position

The rules above turn on a handful of facts:

1. Was there a will, and when was it signed? No will means 29A-2-102. A will signed before the marriage may mean 29A-2-301.
2. How long was the marriage? The years set the percentage under 29A-2-202.
3. What passed outside probate, and to whom? Joint, POD and TOD property left to others counts toward the augmented estate only if the petition is filed within nine months of the death.
4. What does the spouse already own? The spouse's own property counts first, up to twice the percentage.
5. Is there a signed waiver? A prenuptial agreement, postnuptial agreement or property settlement can remove these rights under 29A-2-213.
6. Did the decedent receive Medicaid? If so, the six-month petition under 28-6-23.1 matters for the spouse's own estate.

This page cannot apply those rules to a particular estate. When the augmented estate includes large lifetime gifts or nonprobate accounts, or a waiver's wording is in doubt, a licensed South Dakota attorney can review the documents, and the nine-month date in 29A-2-211 makes an early conversation matter. The South Dakota probate guide explains how the estate itself moves through the circuit court.

Frequently Asked Questions

Can a South Dakota will disinherit a surviving spouse?

Not completely. SDCL 29A-2-202 gives a spouse of a decedent who died domiciled in South Dakota a right to elect a percentage of the augmented estate, from a supplemental amount for a marriage under one year up to 50% for a marriage of 15 years or more. The homestead occupancy right, exempt property and family allowance come on top of that under 29A-2-202(c). The statutory route for giving up these rights ahead of time is a written waiver the spouse signed under SDCL 29A-2-213.

How much is the South Dakota elective share?

It depends on the length of the marriage. SDCL 29A-2-202(a) sets the percentage of the augmented estate at 3% after one year of marriage, rising three points a year to 30% at ten years, then 34%, 38%, 42%, 46%, and 50% at 15 years or more. Under one year the spouse gets only the supplemental amount. SDCL 29A-2-209 counts what the spouse already receives from the will and part of the spouse's own property first, so the estate pays only the shortfall.

What is the deadline to claim the South Dakota elective share?

SDCL 29A-2-211(a) requires a petition filed in the court, and mailed or delivered to any personal representative, within nine months after the death or four months after the will is admitted to probate, whichever is later. A petition filed after nine months, and outside any extension the court granted, loses the decedent's nonprobate transfers to others, such as payable-on-death accounts and jointly titled property that went to someone else. An extension petition must itself be filed within nine months after the death.

What is the $50,000 supplemental elective share in South Dakota?

SDCL 29A-2-202(b) sets a floor. If the spouse's own property, what the spouse receives from the decedent, and the part of the elective share payable from the estate add up to less than $50,000, the spouse may take a supplemental amount equal to $50,000 minus that sum. It applies at every length of marriage, including a marriage of less than one year.

Does a South Dakota surviving spouse get the house?

The spouse gets the right to live in it. SDCL 29A-2-402 gives the homestead allowance as provided in chapter 43-31, and SDCL 43-31-13 lets the survivor possess and occupy the whole homestead until it is otherwise disposed of according to law. Ownership follows the will or intestate succession, and SDCL 43-31-27 makes any devise of the homestead subject to the surviving spouse's rights.

What does a South Dakota spouse get if the will was signed before the marriage?

SDCL 29A-2-301 gives a spouse who married the testator after the will was signed no less than the intestate share, unless the will was made in contemplation of that marriage, says it stays effective despite a later marriage, or the testator provided for the spouse outside the will in place of a gift under it. Under SDCL 29A-2-102 the intestate share is the whole estate unless the decedent left a descendant who is not also the spouse's, in which case it is the first $100,000 plus half of the balance.

Can Medicaid recover from a surviving spouse's estate in South Dakota?

Yes. SDCL 28-6-23 lets the Department of Social Services file a claim against the estate of the surviving spouse of a medical assistance recipient. SDCL 28-6-23.1 lets the surviving spouse petition the department within six months of the recipient's death to limit that responsibility to the value of the spouse's estate on the date the recipient died.

Related Guides

• South Dakota Exempt Property
• South Dakota Family Allowance
• South Dakota Intestate Succession
• South Dakota Will Requirements
• South Dakota Executor Duties
• South Dakota Probate Courts by County

Sources:

• Title: SDCL 29A-2-202, Elective share. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-202
• Title: SDCL 29A-2-203, Computation of augmented estate. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-203
• Title: SDCL 29A-2-204, Decedent's net probate estate. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-204
• Title: SDCL 29A-2-205, Decedent's nonprobate transfers to others. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-205
• Title: SDCL 29A-2-206, Decedent's nonprobate transfers to surviving spouse. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-206
• Title: SDCL 29A-2-207, Surviving spouse's property and nonprobate transfers to others. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-207
• Title: SDCL 29A-2-208, Exclusions, valuation, and overlapping application. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-208
• Title: SDCL 29A-2-209, Sources from which elective shares payable. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-209
• Title: SDCL 29A-2-210, Personal liability of recipients. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-210
• Title: SDCL 29A-2-211, Proceeding for elective share--Time limit. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-211
• Title: SDCL 29A-2-212, Right of election personal to surviving spouse. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-212
• Title: SDCL 29A-2-213, Waiver of right to elect and of other rights. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-213
• 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-2-104, 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-2-301, Entitlement of spouse--Premarital will. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-301
• Title: SDCL 29A-2-402, Homestead allowance. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-402
• 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-2-802, Effect of divorce, annulment, and decree of separation. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-802
• 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-2-804, Revocation of probate and nonprobate transfers by divorce--No revocation by other changes of circumstances. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-2-804
• 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-3-902, Abatement--Order and amount. Publisher: South Dakota Legislature. Publication Date: SL 1995, ch 167; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/29A-3-902
• Title: SDCL 43-31-13, Possession and occupancy of homestead--Surviving spouse--Minor children. Publisher: South Dakota Legislature. Publication Date: SDC 1939, § 51.1716; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/43-31-13
• Title: SDCL 43-31-27, Devise or bequest of homestead subject to rights of surviving spouse. Publisher: South Dakota Legislature. Publication Date: SL 1972, ch 233; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/43-31-27
• Title: SDCL 28-6-23, Medical assistance as debt to department--Recovery of debt. Publisher: South Dakota Legislature. Publication Date: SL 2013, ch 125; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/28-6-23
• Title: SDCL 28-6-23.1, Limiting financial responsibility of estate of surviving spouse. Publisher: South Dakota Legislature. Publication Date: SL 1997, ch 168; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/28-6-23.1
• Title: SDCL 55-17-1, Arrangement qualifying as special spousal trust. Publisher: South Dakota Legislature. Publication Date: SL 2016, ch 231; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/55-17-1
• Title: SDCL 55-17-5, Application of Internal Revenue Code--Special spousal property defined--Community property classified by another jurisdiction. Publisher: South Dakota Legislature. Publication Date: SL 2026, ch 198; accessed 2026-09-27. URL: https://sdlegislature.gov/Statutes/55-17-5

It is not legal advice.