Probate Family Allowance Requirements in South Dakota

At a glance

Requirements one by one

Claimants, domicile, and payment routing

Section 29A-2-401 applies the allowance part to the estate of a South Dakota domiciliary. If the decedent was domiciled elsewhere, that person's domicile law governs the homestead, exempt-property, and family-allowance rights.

Section 29A-2-403 covers the surviving spouse, minor children whom the decedent was obligated to support, and children whom the decedent was actually supporting. Payment normally goes to the living spouse for the spouse and minor or dependent children. If there is no living spouse, it goes to the children or their guardian, conservator, or caregiver. A child living elsewhere may receive a separate part according to need.

The personal representative's ceiling and court relief

The family allowance is a reasonable amount in money from the estate for maintenance during administration. Under § 29A-2-403, the personal representative may determine the allowance without court approval as either a lump sum of no more than $18,000 or installments of no more than $1,500 per month for one year.

Those figures limit the personal representative's no-approval route. The personal representative or an interested person aggrieved by a determination, payment, proposed payment, or failure to act may petition for appropriate relief, including an allowance different from what the representative determined or could have determined.

The complete current Part 4 states no special verified or notarized petition, service list, mandatory attachment, proof standard, mandatory initial hearing, or fixed request deadline. The statutory maintenance period is estate administration; the one-year language expressly limits the personal representative's installment authority.

Property layers, priority, and death

Section 29A-2-402 adds a homestead allowance under chapter 43-31 and property and cash described as exempt property in chapter 43-45. The homestead right belongs to the surviving spouse or minor children. Exempt property goes to the spouse or, if there is no spouse, jointly to the children.

Homestead and exempt property have priority over every estate claim. The cash family allowance follows those two rights and has priority over all claims. A recipient's death ends that person's right to family allowance not yet paid.

Inheritance effect and waiver

The family allowance does not reduce a benefit or share passing by intestacy or elective share. It also does not reduce a will benefit unless the will provides otherwise. Section 29A-2-402 supplies the same additional-benefit rule for homestead and exempt property without the will exception stated for family allowance.

Under § 29A-2-213, the spouse may waive family allowance wholly or partly before or after marriage through a signed written contract, agreement, or waiver. A waiver is not enforceable if the spouse proves it was involuntary. An unconscionable waiver is also unenforceable when the spouse proves the statute's combined failures involving financial disclosure, written disclosure waiver, and adequate knowledge.

What trips people up

• $18,000 is not expressed as the court's ceiling. Section 29A-2-403(f) authorizes relief that may include a family allowance other than what the personal representative determined or could have determined.
• Specifically devised property receives a limited protection. Section 29A-2-402(c) protects it from satisfying homestead and exempt-property rights when other estate property is available. That sentence does not state the same protection for the cash family allowance.
• Death cuts off unpaid support person by person. The end of one recipient's right does not rewrite the eligibility rules for the remaining spouse or children.
• A killer forfeits the allowance. Section 29A-2-803(b) expressly includes family allowance among the estate benefits forfeited by a person who feloniously and intentionally kills the decedent.

Common questions

Can a supported child receive part of the allowance while a spouse is living?

Yes. Section 29A-2-403(c) permits part to go to a child, guardian, conservator, or caregiver and part to the spouse when a minor or dependent child does not live with the spouse, as their needs appear.

Must the court approve an allowance within the statutory ceiling?

No. The personal representative may determine the lump sum or installments within § 29A-2-403(b)'s limits without court approval. Court relief is available when the personal representative or an interested person is aggrieved.

Can a broad marital agreement waive the allowance?

It can. Section 29A-2-213(d) provides that, unless the agreement says otherwise, a waiver of “all rights” or equivalent language, or a complete qualifying property settlement, waives elective-share, homestead, exempt-property, and family-allowance rights.

Statutes and sources

• S.D. Codified Laws § 29A-2-401 — domicile rule (accessed August 3, 2026).
• S.D. Codified Laws § 29A-2-402 — homestead and exempt-property eligibility, priority, inheritance effect, devised-property protection, and court relief (accessed August 3, 2026).
• S.D. Codified Laws § 29A-2-403 — family eligibility, amount, payment routing, priority, inheritance effect, death cutoff, and court relief (accessed August 3, 2026).
• S.D. Codified Laws § 29A-2-213 — signed waiver and enforceability rules (accessed August 3, 2026).
• S.D. Codified Laws § 29A-2-803(b) — forfeiture after a felonious and intentional killing (accessed August 3, 2026).