South Dakota Estate Planning Considerations
South Dakota is a Common Law State, which means the rules governing the ownership, division, and inheritance of income and property acquired by a husband or wife during their marriage holds that subject to various qualifications, each spouse owns and has complete control over his or her income and property.
Last Will and Testament
The minimum age of a person competent to make a will is 18. The number of witnesses necessary to execute a will is two.
The custodial arrangement terminates when:
- The minor child reaches age 18.
- The minor child dies.
Dying without a Last Will, the South Dakota Laws of Intestacy
The estate goes to the surviving spouse, as follows:
- If there are no surviving descendants, —100% of the estate
- If all surviving descendants are also descendants of the spouse, —100% of the estate
- If one or more of the decedent’s surviving descendants are not descendants of the spouse—the first $100,000 plus 50% of the balance of the estate
If there is no surviving spouse, or if a portion of the estate does not go to the spouse:
- 100% to descendants by representation (see SDCL §29A‐2‐106)
If there is no surviving spouse or descendant:
- 100% to surviving parent or parents equally
If there is no surviving spouse, descendant, or parent:
- 100% to the descendants of the decedent’s parents (or the descendants of either parent) by representation (see SDCL §29A‐2‐106)
If none of the above:
- Intestacy laws outline further distribution steps to the level of grandparents, then deceased spouses and descendants. See SDCL 29A‐2‐103(4).
- If no legally described recipient can be found, estate assets go to the state of South Dakota.
South Dakota follows the Uniform Fiduciary Access to Digital Assets Act to ensure that testators can retain control of their digital property and plan for its ultimate disposition.
South Dakota does not impose an inheritance tax.
Credit Estate Tax
South Dakota imposes an estate tax equal to the maximum credit allowed under the federal tax code for paid state estate and inheritance taxes under I.R.C. Sec. 2011. However, the current federal tax code does not permit a credit for paid state estate or inheritance taxes. Therefore, there is no credit estate tax in effect at this time.
Generation-Skipping Transfer Tax (G.S.T. Tax)
South Dakota does not impose a G.S.T. tax.
South Dakota does not impose a gift tax.