Can a surviving spouse claim an elective share in South Dakota?
Full Question:
My husband I were married for 25 years and lived in South Dakota. My husband was a terminal cancer patient and recently passed away. He had left the majority of his property to his son that he had with his ex-wife. I am not satisfied with my share of his estate in his will. Would I be able to claim any more of my deceased husband’s property?
04/07/2017 |
Category: Wills and Es... » Elective Sha... |
State: South Dakota |
#35316
Answer:
S.D. Codified Laws § 29A-2-202
Elective share
(a) The surviving spouse of a decedent who dies domiciled in this State has a right of election, under the limitations and conditions stated in this Part, to take an elective-share amount equal to the value of the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other, in accordance with the following schedule:
If the decedent and the spouse The elective-share
were married to each other: percentage is:
Less than 1 year……………………………………...Supplemental Amount Only
1 year but less than 2 years ………………………….3% of the augmented estate
2 years but less than 3 years………………………….6% of the augmented estate
3 years but less than 4 years………………………….9% of the augmented estate
4 years but less than 5 years………………………….12% of the augmented estate
5 years but less than 6 years………………………….15% of the augmented estate
6 years but less than 7 years………………………….18% of the augmented estate
7 years but less than 8 years………………………….21% of the augmented estate
8 years but less than 9 years………………………….24% of the augmented estate
9 years but less than 10 years…………………………27% of the augmented estate
10 years but less than 11 years……………………….30% of the augmented estate
11 years but less than 12 years……………………….34% of the augmented estate
12 years but less than 13 years……………………….38% of the augmented estate
13 years but less than 14 years……………………….42% of the augmented estate
14 years but less than 15 years……………………….46% of the augmented estate
15 years or more………………………………………50% of the augmented estate
(b) If the sum of the amounts described in §§ 29A-2-207, 29A-2-209(a)(1), and that part of the elective-share amount payable from the decedent's probate estate and nonprobate transfers to others under § 29A-2-209(b) and (c) is less than $50,000, the surviving spouse is entitled to take a supplemental elective-share amount equal to $50,000, minus the sum of the amounts described in those sections. The supplemental elective-share amount is payable from the decedent's probate estate and from recipients of the decedent's nonprobate transfers to others in the order of priority set forth in § 29A-2-209(b) and (c).
(c) If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse's homestead allowance, exempt property, and family allowance, if any, are not charged against but are in addition to the elective-share and supplemental elective-share amounts.
(d) The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent's domicile at death.
S.D. Codified Laws § 29A-2-203
Computation of augmented estate
Subject to § 29A-2-208, the value of the augmented estate, to the extent provided in §§ 29A-2-204, 29A-2-205, 29A-2-206, and 29A-2-207, consists of the sum of the values of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute the decedent's net probate estate, the decedent's nonprobate transfers to others, the decedent's nonprobate transfers to the surviving spouse, and the surviving spouse's property and nonprobate transfers to others.
S.D. Codified Laws § 29A-2-204
Decedent's net probate estate
The value of the augmented estate includes the value of the decedent's probate estate, reduced by funeral and administration expenses, homestead allowance, family allowances, exempt
S.D. Codified Laws § 29A-2-205
Decedent's nonprobate transfers to others
The value of the augmented estate includes the value of the decedent's nonprobate transfers to others, not included under § 29A-2-204, of any of the following types, in the amount provided respectively for each type of transfer:
(1) Property owned by the decedent immediately before death that passed outside probate at the decedent's death. Property included under this category consists of:
(i) Property over which the decedent alone, immediately before death, held a presently exercisable general power of appointment. The amount included is the value of the property subject to the power, to the extent the property passed at the decedent's death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent's estate or surviving spouse.
(ii) The decedent's fractional interest in property held by the decedent in joint tenancy with the right of survivorship. The amount included is the value of the decedent's fractional interest, to the extent the fractional interest passed by right of survivorship at the decedent's death to a surviving joint tenant other than the decedent's surviving spouse.
(iii) The decedent's ownership interest in property or accounts held in POD, TOD, or co-ownership registration with the right of survivorship. The amount included is the value of the decedent's ownership interest, to the extent the decedent's ownership interest passed at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse.
(iv) Proceeds of insurance, including accidental death benefits, on the life of the decedent, if the decedent owned the insurance policy immediately before death or if and to the extent the decedent alone and immediately before death held a presently exercisable general power of appointment over the policy or its proceeds. The amount included is the value of the proceeds, to the extent they were payable at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse.
(2) Property transferred in any of the following forms by the decedent during marriage:
(i) Any irrevocable transfer in which the decedent retained the right to the possession or enjoyment of, or to the income from, the property if and to the extent the decedent's right terminated at or continued beyond the decedent's death. The amount included is the value of the fraction of the property to which the decedent's right related, to the extent the fraction of the property passed outside probate to or for the benefit of any person other than the decedent's estate or surviving spouse.
(ii) Any transfer in which the decedent created a power over income or property, exercisable by the decedent alone or in conjunction with any other person, or exercisable by a nonadverse party, to or for the benefit of the decedent, creditors of the decedent, the decedent's estate, or creditors of the decedent's estate. The amount included with respect to a power over property is the value of the property subject to the power, and the amount included with respect to a power over income is the value of the property that produces or produced the income, to the extent the power in either case was exercisable at the decedent's death to or for the benefit of any person other than the decedent's surviving spouse or to the extent the property passed at the decedent's death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent's estate or surviving spouse. If the power is a power over both income and property and the preceding sentence produces different amounts, the amount included is the greater amount.
(3) Property that passed during marriage and during the two-year period immediately preceding the decedent's death as a result of a transfer by the decedent if the transfer was of any of the following types:
(i) Any property that passed as a result of the termination of a right or interest in, or power over, property that would have been included in the augmented estate under paragraph (1)(i), (ii), or (iii), or under paragraph (2), if the right, interest, or power had not terminated until the decedent's death. The amount included is the value of the property that would have been included under those paragraphs if the property were valued at the time the right, interest, or power terminated, and is included only to the extent the property passed upon termination to or for the benefit of any person other than the decedent or the decedent's estate, spouse, or surviving spouse. As used in this subparagraph, “termination,” with respect to a right or interest in property, occurs when the right or interest terminated by the terms of the governing instrument or the decedent transferred or relinquished the right or interest, and, with respect to a power over property, occurs when the power terminated by exercise, release, lapse, default, or otherwise, but, with respect to a power described in paragraph (1)(i), “termination” occurs when the power terminated by exercise or release, but not otherwise.
(ii) Any transfer of or relating to an insurance policy on the life of the decedent if the proceeds would have been included in the augmented estate under paragraph (1)(iv) had the transfer not occurred. The amount included is the value of the insurance proceeds to the extent the proceeds were payable at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse.
(iii) Any transfer of property, to the extent not otherwise included in the augmented estate, made to or for the benefit of a person other than the decedent's surviving spouse. The amount included is the value of the transferred property to the extent the aggregate transfers to any one donee in either of the two years exceeded $10,000.
S.D. Codified Laws § 29A-2-206
Decedent's nonprobate transfers to surviving spouse
Excluding property passing to the surviving spouse under the federal Social Security System, the value of the augmented estate includes the value of the decedent's nonprobate transfers to the decedent's surviving spouse, which consist of all property that passed outside probate at the decedent's death from the decedent to the surviving spouse by reason of the decedent's death, including:
(1) The decedent's fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent's fractional interest passed to the surviving spouse as surviving joint tenant;
(2) The decedent's ownership interest in property or accounts held in co-ownership registration with the right of survivorship, to the extent the decedent's ownership interest passed to the surviving spouse as surviving co-owner; and
(3) All other property that would have been included in the augmented estate under § 29A-2-205(1) or (2) had it passed to or for the benefit of a person other than the decedent's spouse, surviving spouse, the decedent, or the decedent's creditors, estate, or estate creditors.
S.D. Codified Laws § 29A-2-207
Surviving spouse's property and nonprobate transfers to others
(a) Except to the extent included in the augmented estate under § 29A-2-204 or 29A-2-206, the value of the augmented estate includes the value of:
(1) Property that was owned by the decedent's surviving spouse at the decedent's death, including:
(i) The surviving spouse's fractional interest in property held in joint tenancy with the right of survivorship;
(ii) The surviving spouse's ownership interest in property or accounts held in co-ownership registration with the right of survivorship; and
(iii) Property that passed to the surviving spouse by reason of the decedent's death, but not including the spouse's right to homestead allowance, family allowance, exempt property, or payments under the federal Social Security System; and
(2) Property that would have been included in the surviving spouse's nonprobate transfers to others, other than the spouse's fractional and ownership interests included under subsection (a)(1)(i) or (ii), had the spouse been the decedent.
(b) Property included under this section is valued at the decedent's death, taking the fact that the decedent predeceased the spouse into account, but, for purposes of subsection (a)(1)(i) and (ii), the values of the spouse's fractional and ownership interests are determined immediately before the decedent's death if the decedent was then a joint tenant or a co-owner of the property or accounts. For purposes of subsection (a)(2), proceeds of insurance that would have been included in the spouse's nonprobate transfers to others under § 29A-2-205(1)(iv) are not valued as if the surviving spouse were deceased.
(c) The value of property included under this section is reduced by enforceable claims against the surviving spouse.
S.D. Codified Laws § 29A-2-209
Sources from which elective shares payable
(a) In a proceeding for an elective share, the following are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions due from the decedent's probate estate and recipients of the decedent's nonprobate transfers to others:
(1) Amounts included in the augmented estate under § 29A-2-204 which pass or have passed to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under § 29A-2-206;
(2) Amounts included in the augmented estate which would have passed to the spouse but were disclaimed; and
(3) Amounts included in the augmented estate under § 29A-2-207 up to the applicable percentage thereof. For the purposes of this subsection, the “applicable percentage” is twice the elective-share percentage set forth in the schedule in § 29A-2-202(a) appropriate to the length of time the spouse and the decedent were married to each other.
(b) If, after the application of subsection (a), the elective-share amount is not fully satisfied or the surviving spouse is entitled to a supplemental elective-share amount, amounts included in the decedent's probate estate and in the decedent's nonprobate transfers to others, other than amounts included under § 29A-2-205(3)(i) or (iii), are applied first to satisfy the unsatisfied balance of the elective-share amount or the supplemental elective-share amount. The decedent's probate estate and that portion of the decedent's nonprobate transfers to others are applied so that liability for the unsatisfied balance of the elective-share amount or for the supplemental elective-share amount is equitably apportioned among the recipients of the decedent's probate estate and of that portion of the decedent's nonprobate transfers to others in proportion to the value of their interests therein.
(c) If, after the application of subsections (a) and (b), the elective-share or supplemental elective-share amount is not fully satisfied, the remaining portion of the decedent's nonprobate transfers to others is applied so that liability for the unsatisfied balance of the elective-share or supplemental elective-share amount is equitably apportioned among the recipients of the remaining portion of the decedent's nonprobate transfers to others in proportion to the value of their interests therein.
S.D. Codified Laws § 29A-2-210
Personal liability of recipients
(a) Only original recipients of the decedent's nonprobate transfers to others, and the donees of the recipients of the decedent's nonprobate transfers to others, to the extent the donees have the property or its proceeds, are liable to make a proportional contribution toward satisfaction of the surviving spouse's elective-share or supplemental elective-share amount. A person liable to make contribution may choose to give up the person's proportional part of the decedent's nonprobate transfers or to pay the value of the amount for which the person is liable.
(b) If any section or part of any section of this part is preempted by federal law with respect to a payment, an item of property, or any other benefit included in the decedent's nonprobate transfers to others, a person who, not for value, receives the payment, item of property, or any other benefit is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of that item of property or benefit, as provided in § 29A-2-209, to the person who would have been entitled to it were that section or part of that section not preempted.
S.D. Codified Laws § 29A-2-211
Proceeding for elective share--Time limit
(a) Unless the time for filing an election is extended under subsection (b), the election must be made by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within nine months after the date of the decedent's death, or within four months after the admission to either informal or formal probate of the will of the decedent to which the election applies, whichever limitation later expires. Notice of hearing on the election must be given to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share. The decedent's nonprobate transfers to others are not included within the augmented estate for the purpose of computing the elective share if the petition is filed more than nine months after the decedent's death or beyond the time extended by the court under subsection (b).
(b) Within nine months after the decedent's death, a petition for an extension of time for making an election may be filed and the court may grant the petition for good cause shown. Notice of the petition must be given to all persons interested in the decedent's nonprobate transfers to others.
(c) A demand for an elective share may be withdrawn at any time before entry of a final determination by the court.
(d) After notice and hearing, the court shall determine the elective-share and supplemental elective-share amounts, and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under §§ 29A-2-209 and 29A-2-210. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than the person would have been under §§ 29A-2-209 and 29A-2-210 had relief been secured against all persons subject to contribution.
(e) An order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.
S.D. Codified Laws § 29A-2-212
Right of election personal to surviving spouse
The right of election may be exercised either by the surviving spouse or by the surviving spouse's conservator or agent under the authority of a power of attorney, or if the surviving spouse dies prior to the expiration of the time for making an election under § 29A-2-211, by the surviving spouse's personal representative.
S.D. Codified Laws § 29A-2-213
Waiver of right to elect and of other rights
(a) The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse.
(b) A surviving spouse's waiver is not enforceable if the surviving spouse proves that:
(1) The waiver was not executed voluntarily; or
(2) The waiver was unconscionable when it was executed and, before execution of the waiver, the surviving spouse:
(i) Was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent;
(ii) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided; and
(iii) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.
(c) An issue of unconscionability of a waiver is for decision by the court as a matter of law.
(d) Unless it provides to the contrary, a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.
S.D. Codified Laws § 29A-2-214
Protection of payors and other third parties
(a) Although under § 29A-2-205 a payment, item of property, or other benefit is included in the decedent's nonprobate transfers to others, a payor or other third party is not liable for having made a payment or transferred an item of property or other benefit to a beneficiary designated in a governing instrument, or for having taken any other action in good faith reliance on the validity of a governing instrument, upon request and satisfactory proof of the decedent's death, before the payor or other third party has received written notice from the surviving spouse or spouse's representative of an intention to file a petition for the elective share or that a petition for the elective share has been filed. A payor or other third party is liable for payments made or other actions taken after the payor or other third party received written notice of an intention to file a petition for the elective share or that a petition for the elective share has been filed.
(b) A written notice of intention to file a petition for the elective share or that a petition for the elective share has been filed must be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of intention to file a petition for the elective share or that a petition for the elective share has been filed, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the proceedings relating to the settlement of the decedent's estate, or if no proceedings have been commenced, to or with the court located in the county of the decedent's residence. The court shall hold the funds or item of property and, upon its determination under § 29A-2-211(d), shall order disbursement in accordance with the determination. If no petition is filed in the court within the specified time under § 29A-2-211(a) or, if filed, the demand for an elective share is withdrawn under § 29A-2-211(c), the court shall order disbursement to the designated beneficiary. Payments or transfers to the court or deposits made into court discharge the payor or other third party from all claims for amounts so paid or the value of property so transferred or deposited.
(c) Upon petition to the court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this part.
