South Dakota: Transfer-on-Death Deed Requirements
The short answer
Yes. South Dakota allows a revocable transfer-on-death deed under its Real Property Transfer on Death Act. The owner signs a recordable deed and ordinarily acknowledges it before a notary—no separate TOD-deed witness is required—then records it with the county register of deeds before death. A beneficiary generally must survive by 120 hours, and the property remains exposed to the owner's debts and Medicaid recovery.
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This is the general rule in South Dakota. Ezel applies current South Dakota law to your specific facts and answers with citations to the statutes.
| Governing law | South Dakota Real Property Transfer on Death Act, SDCL §§ 29A-6-401 to 29A-6-435 (enacted 2014, SL ch. 133) |
|---|---|
| TOD deed available? | Yes — a statutory revocable transfer-on-death deed for an interest in South Dakota real property (SDCL §§ 29A-6-402 to -405) |
| How to sign it | Transferor signs a properly recordable deed; no TOD-specific witness required. Ordinary recording route is acknowledgment before a notary, though South Dakota also permits proof by a subscribing witness when not acknowledged (SDCL §§ 29A-6-408, 43-28-8, 43-25-26) |
| Recording requirement | Must be recorded before the transferor's death with the register of deeds in the county where the property is located; no fixed signing-to-recording deadline beyond record-before-death (SDCL § 29A-6-408(3)) |
| Revoking it | Revocable until death by a recorded later inconsistent TOD deed, express revocation, or inter vivos deed that expressly revokes; the instrument must be acknowledged after the original deed and recorded before death. Tearing up or marking the deed does not revoke it (SDCL §§ 29A-6-405, -410 to -413) |
| Eligible property & owner | An individual may transfer an interest in South Dakota real property to 1 or more persons. A surviving joint owner's right of survivorship controls; the TOD deed works if the transferor is the last surviving joint owner (SDCL §§ 29A-6-402, -403, -417) |
| Beneficiary survival & effect | Beneficiary generally must survive the transferor by 120 hours unless the deed waives or modifies that rule; multiple beneficiaries take equal undivided shares with no survivorship, and a lapsed share shifts to survivors. Property passes without warranty and subject to existing liens and interests (SDCL §§ 29A-6-415 to -418) |
| Creditor & Medicaid reach | Beneficiary is liable for the owner's debts up to the date-of-death property value, subject to exemptions; ordinary action deadline is 6 months. Medicaid recovery gets the shorter of 2 years after death or 6 months after prescribed written notice to DSS, and the post-death confirmation affidavit must state DSS was notified (SDCL §§ 29A-6-420 to -423, -427) |
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South Dakota allows a transfer-on-death deed under SDCL §§ 29A-6-401 to
29A-6-435. The deed transfers no present interest. You keep the power to sell, mortgage,
or revoke it, and the beneficiary receives the property only at death.
Requirements one by one
How to sign and record it
Under § 29A-6-408, the deed must contain the elements and formalities of a properly
recordable lifetime deed, say that the transfer occurs at death, and be recorded before the
owner dies with the county register of deeds.
The TOD Act adds no separate witness count. South Dakota's general recording rule,
§§ 43-28-8 and 43-25-26, ordinarily uses the owner's acknowledgment before a notary,
but also permits proof by a subscribing witness when the grant is not acknowledged. The
clean routine is a notarized owner signature and prompt recording. There is no fixed number
of days after signing.
Revocation
Under §§ 29A-6-405 and 29A-6-410 to 29A-6-413, revoke by recording a later
inconsistent TOD deed, an express revocation, or an inter vivos deed that expressly revokes.
The revoking instrument must be acknowledged after the original and recorded before death.
Burning, tearing, canceling, or writing on the recorded deed does not revoke it.
Beneficiary survival and what passes
Under §§ 29A-6-415 to 29A-6-418, a beneficiary normally must survive the owner by
120 hours, unless the deed waives or modifies that period. Multiple beneficiaries take
equal undivided shares without survivorship, and a lapsed share shifts proportionally to the
survivors. A surviving joint owner's own survivorship right comes first.
The beneficiary takes without a title warranty and subject to every mortgage, lien,
contract, encumbrance, and other interest existing at death.
Creditor and Medicaid reach
The deed does not change creditor rights or public-assistance eligibility during life
(§ 29A-6-414). After death, §§ 29A-6-420 to 29A-6-423 make the beneficiary
liable for the owner's lawful debts up to the property's date-of-death value, subject to
homestead and other legal exemptions. Ordinary creditors generally have six months.
South Dakota gives Medicaid recovery a different clock: under § 29A-6-421, the Department
of Social Services must sue within the shorter of two years after death or six months after
receiving the statute's complete written notice. The confirmation affidavit required by
§ 29A-6-427 must state that DSS received notice to address public-assistance liens.
What trips people up
- Record before death. Signing and notarizing without recording leaves no effective TOD
transfer. - Destroying the deed is not revocation. Record a compliant revoking instrument.
- The survival period is 120 hours. A beneficiary who survives only briefly may still be
treated as having died first unless the deed validly changes that rule. - Medicaid has its own notice and deadline. The ordinary six-month creditor statement is
incomplete for DSS recovery.
Common questions
Does my beneficiary sign? No. Section 29A-6-409 requires no notice, delivery,
acceptance, or consideration during your life.
Do I need deed witnesses? The TOD Act does not impose a separate witness count. The
usual recordable route is an acknowledged signature; South Dakota law also recognizes
subscribing-witness proof if the grant was not acknowledged.
Can my will revoke the deed? No. Use one of the recorded instruments allowed by
§ 29A-6-410 before death.
Does the beneficiary inherit the mortgage? The property remains subject to mortgages,
liens, and other existing interests under § 29A-6-416.
Statutes and sources
- SDCL §§ 29A-6-401 to 29A-6-429 (TOD authorization, execution, revocation, effect, creditor liability, and confirmation affidavit) — https://sdlegislature.gov/api/Statutes/29A-6.html (accessed 2026-07-12)
- SDCL § 43-28-8 (acknowledgment or proof before recording) — https://sdlegislature.gov/api/Statutes/43-28-8.html (accessed 2026-07-12)
- SDCL § 43-25-26 (subscribing-witness proof for an unacknowledged real-property grant) — https://sdlegislature.gov/api/Statutes/43-25-26.html (accessed 2026-07-12)
Source links
Every statute quoted above, linked, with the date we checked it.
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