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Estate Planning and Litigation in Today’s Blended South Dakota Families

On Behalf of | Oct 12, 2023 | Will Contests & Estate Litigation

In today’s society, family relationships are more diverse than they’ve ever been. Whereas we once thought of a nuclear family as a unit consisting of a husband, a wife, and children, a contemporary family unit is much more likely to be a blended one. The changes in today’s family structure are due to a number of factors:

  • Increased divorce/remarriage rates
  • More cohabitation by unmarried partners
  • Same-sex marriages
  • More adoptions/foster care/shared custody
  • More children raised by aunts, uncles, and grandparents

The diversity now common in families can mean increased disagreement and litigation over the distribution of property, money, and other assets when a member of a blended family dies with or without creating a will.

Common Issues in Blended Family Estates

In a blended family, it’s common for the spouses to make identical wills, each leaving the other all assets with the agreement that they will be equally distributed among children and stepchildren upon the death of the spouse who lives longer. If such an agreement is only verbal, it’s not binding. Even when it is in writing, it’s generally not in the form of a legal contract, so the surviving spouse can always write a new will disinheriting the stepchildren in favor of biological children or even a new spouse or partner.

This happens often, and the biological children of the first spouse to pass away are likely to be disinherited in such a case. If you’ve been wrongly disinherited or otherwise treated unfairly in regard to the estate of a deceased parent or another blended family member, you may legally contest the will in question. To do so, you’ll need the help of an experienced lawyer who is familiar with the very complex South Dakota Uniform Probate Code, some provisions of which are listed below:

  • A testator (the deceased person who made the will) may not completely disinherit a spouse in South Dakota. If the will omits a spouse or provides very little, that spouse may take an elective share of the augmented estate based on the number of years the couple was married.
  • A testator’s will may omit/disinherit a child born to/adopted by the testator before the writing of the will. A child born or adopted after the will is written can be omitted only if the testator leaves the entire estate to the child’s other parent.
  • The child of a widow whose late spouse was not the child’s father is still considered a child of the marriage and may inherit from the will.
  • A child born to the deceased but legally adopted by someone other than a blood relative has no right to inherit unless that child is specifically provided for in the will.
  • Neither un-adopted stepchildren nor foster children have the same rights to inherit that biological children do if they’re omitted from the will or the deceased dies intestate (without a will).
  • In the absence of a will, a child born out of wedlock has inheritance rights to the father’s estate only if:
    • The decedent’s paternity has been acknowledged or proven.
    • The child’s parents married after the child’s birth.
  • A child conceived and born less than 10 months before the death of the decedent has inheritance rights.
  • In the absence of a will, the child of a deceased parent survived by a spouse who is not the child’s other parent is entitled to only 50% of any estate assets remaining after the surviving spouse takes the first $100,000’s worth and 50% of the rest.
  • A child need not be a U.S. citizen to inherit from a deceased American parent.
  • Heirs/beneficiaries who object to the terms of a will or its execution may initiate litigation to:
    • Prove the testator lacked testamentary capacity (sound mind).
    • Show the testator was under undue influence.
    • Remove the personal representative in charge of executing the will.

The Role of Your Attorney

In addition to helping you navigate the complex South Dakota Uniform Probate Code, a wills and estates lawyer can provide assistance when:

  • A decedent’s ownership of assets listed in the will is questioned.
  • An estate has significant debt or owes back taxes.
  • Beneficiaries of a will are hard to locate.
  • The personal representative fails to execute the will legally and correctly.
  • Members of a blended family need help with estate planning to prevent the conflicts and potential litigation discussed above.

Are You a Blended Family Member Who Disagrees With the Provisions or Execution of a Decedent’s Will?

An experienced wills and estates attorney can help with estate planning as well as litigation. Contact us online or call us at 605-644-5003 to schedule a free consultation. We serve clients throughout South Dakota and northwest Iowa.