Will Anti-Lapse and Substitute Gifts in South Dakota

At a glance

Requirements one by one

Covered beneficiaries and death timing

§ 29A-2-603(a) covers an individual named in a will who dies before the will is executed or after execution but before the testator. It protects a grandparent, a descendant of a grandparent, a stepchild, or a descendant of a stepchild of the testator if that devisee leaves descendants who survive the testator. The descendants take the devisee's share by representation. Subsection (b) applies a parallel rule to a deceased member of a class gift.

Survival and class gifts

§ 29A-2-702(a) generally treats an individual who does not survive an event by 120 hours as having predeceased it. Subsection (d) gives exceptions, including governing-instrument language that deals explicitly with simultaneous deaths or expressly sets a different survival period. For a class gift described as “issue,” “descendants,” or “heirs of the body,” § 29A-2-708 instead distributes to class members living when the interest takes effect, in the intestacy shares it specifies. § 29A-2-711 separately addresses classes described as “heirs,” “next of kin,” “relatives,” or “family.”

Failed gifts and future trust interests

Under § 29A-2-604(a), a failed nonresiduary devise becomes part of the residue. A failed residuary devise goes to the testator's heirs unless the residue was left to multiple persons; then the other residuary devisees take, proportionally where more than one remains (§ 29A-2-604(b)).

§ 29A-2-603(c)(2) expressly excludes a future interest under a trust from the will rule. Section 29A-2-707 makes that interest contingent on surviving the distribution date and can substitute surviving descendants of a protected deceased beneficiary at that date. It also has a class-gift and failed-interest route; the relevant death is tied to the trust's distribution date, not automatically to the testator's death.

What trips people up

The stepchild category also reaches a descendant of a stepchild (§ 29A-2-603(a)–(b)). The trust provision uses the testator or settlor as the kinship reference and a later distribution date (§ 29A-2-707(b)–(c)).

Common questions

Does death before signing the will rule out a substitute gift? No. § 29A-2-603(a) expressly covers an individual named as devisee who died before execution, provided its other conditions are met.

What if the will leaves the residue to only one person and that gift fails? § 29A-2-604(b) directs the failed residuary devise to the testator's heirs unless the residue was devised to two or more people.

Is a trust remainder governed by the will's death date? § 29A-2-707 uses the future interest's distribution date and has its own substitute-descendant rule.

Statutes and sources

• S.D. Codified Laws §§ 29A-2-601, -603, -604, -702, -707, -708 and -711. Verbatim official excerpts, section URLs, and access dates appear in the source fields above.