Spousal Elective Share Requirements in South Dakota

At a glance

Requirements one by one

The percentage rises for fifteen years

South Dakota starts with supplemental amount only when the marriage lasted less than one year. The percentage then rises by three points for each full year from 3% after one year to 30% after ten years. It increases to 34%, 38%, 42%, and 46% for years eleven through fourteen, and reaches 50% after fifteen years.

The $50,000 supplemental amount is not automatically added to the percentage. Section 29A-2-202(b) compares the spouse's own property and specified amounts already satisfying or payable toward the share; the supplement fills the stated shortfall up to $50,000. Homestead allowance, exempt property, and family allowance remain additional.

Four property groups form the augmented estate

Section 29A-2-203 combines property wherever situated in four categories:

• the decedent's net probate estate;
• the decedent's nonprobate transfers to other people;
• the decedent's nonprobate transfers to the spouse; and
• the spouse's property and nonprobate transfers to others.

The transfer-to-others category reaches survivorship property, POD and TOD accounts, insurance, retained-benefit and retained-power transfers, and certain transfers within two years before death. The catchall recent-gift rule includes the value above $10,000 transferred to a single donee in either of those two years. Property passing outside probate to the spouse is also included, while federal Social Security benefits are excluded.

Claims and consent can change the value

The net probate estate is reduced by funeral and administration expenses, homestead and family allowances, exempt property, and enforceable claims. Enforceable claims also reduce the nonprobate and spouse-property categories.

A transfer is excluded from the decedent's nonprobate transfers to others to the extent the decedent received full consideration or the spouse joined in or consented to it in writing. Present and future interests use commuted value, and overlapping provisions include the property only once, under the route producing the greatest value.

The later deadline can still shrink the estate

The ordinary filing deadline is the later of nine months after death or four months after the will enters informal or formal probate. The spouse files the petition in court and mails or delivers it to the personal representative.

There is an important second clock. A good-cause extension petition must be filed within nine months after death, with notice to everyone interested in the decedent's nonprobate transfers to others. If the election petition is filed more than nine months after death without a qualifying extension, those nonprobate transfers are excluded from the augmented estate even when the four-month probate clock made the election itself timely. Withdrawal is allowed until final determination.

More than the spouse may exercise the right

The spouse may act personally, through a conservator, or through an agent with power-of-attorney authority. If the spouse dies before the election period expires, § 29A-2-212 also allows the spouse's personal representative to make the election. The section does not list a guardian as a separate right holder.

Waiver uses a signed writing and enforceability safeguards

The spouse may waive all or part of the election and the listed allowances before or after marriage through a signed written contract, agreement, or waiver. The statute does not add a witness or notarization requirement.

The waiver is unenforceable if the spouse proves involuntary execution, or execution-time unconscionability together with the required lack of fair disclosure, absence of an express written disclosure waiver, and inadequate knowledge. Unless contrary language appears, an “all rights” waiver also reaches homestead, exempt property, family allowance, intestacy benefits, and benefits under an earlier will.

Existing benefits are applied before contribution

The statute first applies probate property passing to the spouse, nonprobate transfers to the spouse, disclaimed amounts, and the applicable percentage of the spouse's own included property. It then apportions any unsatisfied amount among the probate estate and most nonprobate recipients, followed by the remaining recent-transfer categories.

Only original nonprobate recipients and their donees who still hold the property or proceeds have personal contribution liability. A liable person may pay the proportional value or surrender the corresponding property. The election does not itself require the spouse to renounce will benefits; those benefits instead count toward initial satisfaction.

What trips people up

• The later-of deadline is not the whole currency rule. A petition after nine months can remain timely because of late probate but lose nonprobate- transfer reach without a timely extension.
• The $50,000 amount is a shortfall supplement. It is reduced by the property and payments named in § 29A-2-202(b), not simply stacked on top of every percentage share.
• The spouse's own property enters the base. Section 29A-2-207 includes spouse-owned and spouse-transfer property, subject to claims and valuation rules.
• Will benefits are credits, not an automatic forfeiture. Property passing to the spouse under the will or intestacy is applied first toward the share.

Common questions

Can notice to a bank or insurer preserve the claim before the petition is filed? SDCL § 29A-2-214 permits registered or certified return-receipt mail, or summons-style service, of written notice of intent to file. A payor that receives notice may deposit the funds or property with the court.

What happens if federal law preempts contribution from a benefit? Section 29A-2-210(b) creates a return or personal-liability obligation for a recipient who received the benefit without giving value, measured under the statutory payment order.

Does the spouse receive homestead and family allowances on top of the election? Yes. Section 29A-2-202(c) makes homestead allowance, exempt property, and family allowance additional rather than credits against the share.

Statutes and sources

• SDCL § 29A-2-202 — marriage scale, $50,000 supplemental calculation, additional allowances, and nonresident-domicile rule. Official current section (accessed 2026-08-02).
• SDCL § 29A-2-203, § 29A-2-204, § 29A-2-205, § 29A-2-206, and § 29A-2-207 — the four augmented-estate components, probate deductions, nonprobate transfers, spouse transfers, and spouse property. Official chapter catalog and linked current sections (accessed 2026-08-02).
• SDCL § 29A-2-208 — consideration and consent exclusions, claims, commuted value, and no-double-counting rule. Official current section (accessed 2026-08-02).
• SDCL §§ 29A-2-209 to -210 — satisfaction order and recipient contribution liability. Official § 29A-2-209 and official § 29A-2-210 (accessed 2026-08-02).
• SDCL § 29A-2-211 — filing, delivery, later-of deadline, extension, nonprobate cutoff, hearing, withdrawal, and determination. Official current section (accessed 2026-08-02).
• SDCL §§ 29A-2-212 to -213 — right holders and waiver safeguards. Official § 29A-2-212 and official § 29A-2-213 (accessed 2026-08-02).
• SDCL § 29A-2-214 — advance notice to payors and court-deposit route. Official current section (accessed 2026-08-02).