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The Rights of a Child Omitted From a Will in South Dakota

On Behalf of | Jul 23, 2021 | Will Contests & Estate Litigation

A will is a legal document instructing the personal representative of a deceased person’s estate as to the distribution of property, money, and other assets of the testator (the deceased). In South Dakota, a legal will must meet three requirements:

  • It must be a written document (except in a few unusual circumstances).
  • It must be legally witnessed except in the case of a holographic will (written, signed, and dated in the handwriting of the deceased).
  • The testator must be over 18 years of age and of sound mind.

What Rights Do Children Have When They Are Omitted From a Parent’s Will?

A parent may specifically disinherit a child or simply omit that child from the will. If the testator does not leave anything to a child who was born to or adopted by the testator before the writing of the will, that child receives nothing. There are different rules, however, for an omitted after-born or after-adopted child (one born to or adopted by the testator after the writing of the will):

  • An omitted after-born/after-adopted child receives an estate share equal to what the child would’ve received had the parent died intestate (without a will). South Dakota law lays out specific rules for intestate succession in such a case. These rules apply unless the testator left the entire estate to the other parent of the omitted child.
  • If the testator provided in the will for children born or adopted before the writing of the will, an omitted after-born/after-adopted child is entitled to an estate share equal to what every child would receive had the testator provided equally for each of them.
  • If the testator provided for the omitted after-born or after-adopted child through a transfer outside the will (a trust or life insurance policy, for example), and evidence shows this transfer was meant to take the place of provision in the will, then the omitted child may not receive anything more.
  • An omitted living child whom the testator mistakenly believed to be deceased when the will was written is considered an after-born or after-adopted child for purposes of the will.

Because of the complex nature of South Dakota wills and estates law, the services of a lawyer are highly recommended for any child who has been omitted from a deceased parent’s will.

Have You Been Omitted From a Deceased Parent’s Will in South Dakota? Contact Our Will Contest Attorneys Today.

An experienced wills and estates attorney can help you claim what’s rightfully yours. Contact us online or call us at 605-644-5003 to schedule a free consultation. We serve clients throughout South Dakota and northwest Iowa.