Omitted or Pretermitted Children Under Wills in South Dakota
At a glance
| Will and child covered | Later-born or later-adopted child neither mentioned nor provided for; mistaken-death child included (§ 29A-2-302(a), (b)). |
|---|---|
| Birth or adoption timing | Birth or adoption after will execution; mistaken-death rule also covers child believed dead (§ 29A-2-302(a), (b)). |
| Naming and provision test | Child must be neither mentioned nor provided for in will (§ 29A-2-302(a)). |
| Intentional omission | No separate intent exception stated; mention or provision defeats ordinary coverage (§ 29A-2-302(a)). |
| Other-parent gifts | No-child route excepts substantially-all devise to other parent who survives and is entitled to take (§ 29A-2-302(a)(1)). |
| Outside gifts and advancements | Outside transfer defeats share if in-lieu intent shown by statements or reasonably inferred from amount or other evidence (§ 29A-2-302(a)(3)). |
| Baseline statutory share | No child living at execution: intestate-equivalent value, subject to other-parent exception (§ 29A-2-302(a)(1)). |
| Effect of gifts to existing children | If then-living children received will gifts: equalized share only from those gifts (§ 29A-2-302(a)(2)(i)–(ii)). |
| Property source and abatement | No-child route uses § 29A-3-902 order; earlier children's gifts abate ratably on child-gift route (§ 29A-2-302(a)(1), (2)(iv)). |
| Trust and nonprobate reach | Earlier child-gift character preserved where feasible; outside transfer may defeat share under in-lieu test (§ 29A-2-302(a)(2)(iii), (3)). |
Requirements one by one
Child and share
Under § 29A-2-302(a), the ordinary route requires a child born or adopted after execution and neither mentioned nor provided for in the will. Subsection (b) treats a child omitted because the testator believed the child dead as an omitted later child. If no child lived at execution, the starting value is an intestate-equivalent share. Where the will gave property to then-living children, the later child's pool is those gifts, equalized as if the omitted later children had been included.
Property used
Earlier children's gifts abate ratably under § 29A-2-302(a)(2)(iv), preserving the testamentary plan as far as possible. In the no-child route, § 29A-3-902 ordinarily uses undisposed property first, then residuary gifts, property not specifically devised, and other property; contrary will intent can change the order.
What trips people up
The other-parent exception applies to the no-child route and requires that parent to survive and be entitled to take an all-or-substantially-all devise. Separately, an outside transfer disqualifies a child only if its intended role as a replacement for a will provision is shown under § 29A-2-302(a)(3). The ordinary entry test says neither mentioned nor provided for; the section has no separate intentional-omission exception.
Common questions
Does an outside gift automatically cancel the share? No. The in-lieu intent must be shown by the testator's statements or reasonably inferred from the transfer's amount or other evidence (§ 29A-2-302(a)(3)).
Can the share be a future trust interest? Under § 29A-2-302(a)(2)(iii), it should match the equitable or legal, present or future character of earlier child gifts where feasible.
Statutes and sources
- S.D. Codified Laws §§ 29A-2-302 and 29A-3-902. Verbatim current text, official section URLs, and access dates appear in the source fields above.
Source links
Every statute quoted above, linked, with the date we checked it.
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