What Happens if You Die Without a Will in South Dakota?

Imagine this: you’ve worked hard your whole life, built a home, supported your family, and saved enough to leave something meaningful behind. What happens if you pass away without ever putting your wishes in writing?

In South Dakota, if someone dies without a will, their estate is considered intestate, which means the state, not you, decides who gets your property. Under South Dakota Codified Laws Title 29A, intestacy laws dictate how your property is distributed among surviving relatives like a spouse, children, parents, or even more distant relatives.

Without a will, you do not get to choose where your property goes, leave specific gifts to loved ones, or support causes that matter to you. Understanding what happens when you die intestate is a powerful reminder of why creating a will is so important. It’s your chance to make sure your estate reflects your values and intentions.

Below are some of the default rules for how property is distributed when you pass away without will, which may not match what you want to do with your estate.

Surviving Spouse

Under South Dakota law, if you pass away without a will, your spouse will receive a large share of your estate. If you don’t have any living children or descendants, or all your children are also your spouse’s, your spouse inherits everything. Even if you have children from another relationship, your spouse still inherits the first $100,000 of your estate, plus half of anything remaining.

Descendants

South Dakota law also specifies the order of inheritance for people other than your spouse. Whatever your spouse does not inherit passes to your descendants (typically your children) “by representation.” If you have no living descendants, your estate goes to your parents (or parent, if only one is living). If you have no living descendants or parents, your estate goes to other family members “by representation.” Generally, this means your siblings or nieces and nephews. If none of those relatives are living, your estate is split into two halves: one for your father’s side of the family and one for your mother’s side. Each half will go to your grandparents or their descendants. Generally, this means your aunts, uncles, or cousins. If there are no living relatives on one side, the entire estate goes to the relatives on the other side.

“By representation" is a way of dividing an estate to ensure fairness across generations. If someone who would have inherited, like a child or sibling, already passed away but had living descendants of his or her own, those descendants step into their shoes and inherit that share.

Consider this example: Alan had two children, Betsy and Chris. Betsy has already passed away, but had two children of her own, Danielle and Ethan. When Alan passes, Chris will receive his share, which is one-half of the estate. Danielle and Ethan will inherit Betsy’s one-half share equally between them, so each will inherit one-fourth of the estate. This method ensures that each branch of the family still gets its fair share, even if someone in that line has passed away.

No Taker

If no living heirs can be found, the entire estate passes to the State of South Dakota. This outcome is known as escheat, a term that, if mispronounced, probably matches how most people feel about this outcome.

Laving your estate to the state’s default laws is a gamble. Without a will or trust, your assets could go to people you never intended, or even to the state itself. Creating an estate plan protects not only your property, but your legacy as well. It ensures that the people and causes you care about are taken care of and gives your loved ones clarity during a difficult time. It’s a simple act with a lasting impact. The estate planning and trust law team are here to help you navigate the complexities of securing your financial future and planning for your legacy.