The best way for a person to control what happens to their assets after their death is to make a legal will while they’re still alive. They may instruct their personal representative to distribute their property as they see fit after they’ve passed away. If, however, they wish to leave their spouse nothing, their wishes can be overridden by the probate court. South Dakota law does not allow a person to completely disinherit a spouse.
If your spouse has recently passed away and their will leaves you nothing or very little, you can contest the will and take an “elective share” of the augmented estate based on the number of years you’ve been married. The amount of the elective share ranges from 3% for marriages lasting more than one but less than two years to 50% for marriages lasting more than 15 years. The augmented estate of the deceased includes:
- The deceased’s non-probate transfers to the spouse and others
- All real and personal property in the estate
- The spouse’s property
Allowances and Exemptions for Surviving Spouses
A surviving spouse also has rights to certain allowances and exemptions under South Dakota law:
- Homestead allowance. This prevents the family home from being taken from the surviving spouse for unpaid taxes or by any judicially ordered sale of the property.
- Family allowance. This is a monetary allowance from the estate for the spouse’s living expenses (not more than $18,000) during the time it takes to probate/administer the estate.
- Exempt property and money. Certain family belongings and domestic support orders (alimony, child support) belong to the surviving spouse and cannot be taken by the court for any reason. This exemption takes precedence over any financial obligations of the estate.
When a Spouse Dies Without a Will
If you are legally married and your spouse died intestate (without a will), you will take the entire estate if your spouse:
- Had no descendants
- Had the same descendants as you
If your spouse has descendants who are not your descendants (children from a previous marriage or relationship), you still take the first $100,000 of the estate and one-half of the rest of the estate. The other half goes to the descendants from the previous marriage or relationship.
Are You a Surviving Spouse Who Has Been Disinherited? Contact our Will Contest Attorneys Today.
An experienced wills and estates attorney can help you claim your rightful elective share and other spousal benefits. Contact us online or call us at 605-306-4100 to schedule a free consultation. You pay no attorney fees until we win your case.