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Spousal Elective Share Law in South Dakota

In South Dakota, a surviving spouse can elect 3% to 50% of the augmented estate depending on the length of the marriage, by petition within 9 months after death or 4 months after the will is probated, whichever is later.

Last checked . General information, not legal advice.

South Dakota at a glance

Elective share
3% to 50% of augmented estate, by length of marriage
Supplemental amount only for marriages under 1 year; 50% after 15 years or more.
Deadline to elect
9 months after death or 4 months after will probate, if later
A petition to extend can be filed within 9 months after death.
Community property state
Only by opt-in special spousal trust
Spouses can classify property as community property by moving it into a South Dakota special spousal trust.

Sources

Last checked

The rules in South Dakota

How much can a surviving spouse claim in South Dakota if left out of the will?

Elective share in South Dakota: 3% to 50% of augmented estate, by length of marriage. Supplemental amount only for marriages under 1 year; 50% after 15 years or more.

What is the deadline to claim the elective share in South Dakota?

Deadline to elect in South Dakota: 9 months after death or 4 months after will probate, if later. A petition to extend can be filed within 9 months after death.

Is South Dakota a community property state?

Only by opt-in special spousal trust. Community property state in South Dakota: only by opt-in special spousal trust. Spouses can classify property as community property by moving it into a South Dakota special spousal trust.

Where do the South Dakota spousal elective share laws come from?

The rules above come from SDCL 29A-2-202, SDCL 29A-2-211 and SDCL 55-17-3. Each source is linked on this page. We last checked them in October 2026.

What this means in practice

The election is not automatic. A surviving spouse who wants the elective share usually must file a written election with the probate court, and serve notice on the personal representative, before a deadline. Missing the deadline can mean losing the right to elect.

Taking the elective share often means giving up gifts under the will and sometimes other benefits. Comparing what the will provides against the statutory share, including any trusts, life insurance or joint accounts that may count toward the share, helps show whether an election makes sense.

Spouses can often waive elective share rights in a written prenuptial or postnuptial agreement signed with full disclosure. If a waiver is part of an estate plan, the will, trust and marital agreement should be drafted to work together, and a local attorney can confirm the formal requirements.

General information, not legal advice. Laws change, and cities can add their own rules, so check the current statute before you rely on it.