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MORTL → State Guides → South Dakota
State Guide
What South Dakota law actually says about death, probate, cremation, advance directives, and estate taxes. No legal jargon. Just what you need to know.
Common questions
Someone just died in South Dakota? The first 24 hours, step by step →
Guide Status
● Last reviewed August 2026
Laws change. Each section shows when it was last verified. Always confirm with a licensed South Dakota attorney for your specific situation.
This is general information, not legal advice. South Dakota law changes. Your situation is specific. For anything that matters, talk to a licensed South Dakota attorney. Our directory doesn't list attorneys, so you'll find one on your own.
The short answer
In South Dakota, estates under $100,000 can skip full probate through a simplified process or affidavit. Cremation requires a 24-hour wait. There's no South Dakota estate or inheritance tax. Every figure below names its source and the date it was checked.
Reviewed August 2026 · South Dakota
Someone just died in South Dakota: the first 24 hours →Verified providers in South Dakota →
Last verified: August 7, 2026
Source: SD Codified Law 34-25, SD Dept. of Health ↗At a Glance
File within 5 days · Restricted for 25 years · Then public
A death certificate must be filed with the South Dakota Department of Health within five days of the death. Typically, the funeral director or other person in charge of the decedent's remains is responsible for filing the certificate. Certified copies can be obtained from the South Dakota Department of Health, Vital Records Office.
Ask each bank, insurer, court, agency, and property office whether it requires a certified copy. Order an initial quantity based on those actual needs, and confirm the current fee and process for ordering more.
Certified copies of death records may be issued to the registrant's spouse, children, parents, guardian, next of kin, or authorized representative. Proof of relationship may be required. Requests can be made in person, through the mail, online, or over the phone.
Order certified copies from South Dakota's vital records office; this section's source link is the official process. The funeral home or cremation provider usually orders the first copies for you. Ask each bank, insurer, court, and agency whether it needs its own certified copy before you decide how many to order.
$15 per certified copy in South Dakota, as shown above. Additional-copy pricing varies; the official source linked in this section has the current fee schedule.
At a Glance
Small estate threshold vs. national average
In South Dakota, probate is generally required if the deceased person's estate (excluding certain non-probate assets like jointly owned property or assets with beneficiary designations) exceeds $100,000 in value. Estates at or below that may use a small estate affidavit instead, once 30 days have passed since the death. The $100,000 test is the value of the entire estate wherever located, less liens and encumbrances (SDCL 29A-3-1201).
The probate process in South Dakota can take several months to over a year, depending on the complexity of the estate.
If a South Dakota resident dies without a valid will (intestate), their assets are distributed according to state law. An heir must survive the decedent by 120 hours to inherit.
Common strategies to avoid probate in South Dakota include establishing a revocable living trust, designating beneficiaries on financial accounts (such as bank accounts, retirement accounts, and life insurance policies), and holding property in joint tenancy with rights of survivorship.
A straightforward South Dakota probate typically runs several months to over a year, as shown in this section. Contested wills, missing heirs, or real property in other states stretch it well past that.
$100,000. Estates under that figure can use the simplified process or affidavit covered above instead of full probate.
Not always. If the estate qualifies for the simplified process covered above, many people handle it without a lawyer. Hire one for full probate, a contested will, or property in more than one state. Before you hire anyone, know the fee structures: hourly, flat, and (in a few states) statutory percentages. Our probate attorney cost guide covers what each should run you.
No will yet, or one that's out of date? How to write a will covers what belongs in one and the signing requirements, step by step. The rules on this page are what South Dakota law adds.
Yes. South Dakota authorizes the transfer on death deed under S.D. Codified Laws §§ 29A-6-401 to 29A-6-435 (South Dakota Real Property Transfer on Death Act). Record it while you’re alive and the property passes to your named beneficiary at death, outside probate, revocable any time before then. South Dakota adopted the uniform act in 2014; the deed must be recorded with the register of deeds before the owner dies.
South Dakota doesn't require a private employer to give bereavement leave, paid or unpaid. Whatever you get is your employer's policy, and it can be changed or refused.
Who it covers. Not applicable. No private-employer mandate.
How much. Not applicable. No private-employer mandate.
Paid or unpaid. Not applicable. No private-employer mandate.
South Dakota's protected-absence list is short. The only job-protected absence its labor agency names is jury duty: "The law prohibits an employer from firing or demoting an employee for serving as a juror. Time missed for jury duty may be with or without pay at the employer's discretion." On breaks and holidays the same publication says South Dakota doesn't have a law requiring rest breaks or meal periods and doesn't require holiday pay. So a South Dakota worker's bereavement time comes entirely from the handbook. No pregnancy-loss provision, and no city can add one because South Dakota has no local paid leave ordinances in force.
Yes. South Dakota enforces pet trusts under S.D. Codified Laws §§ 55-1-21 to 55-1-21.8, so money you set aside for an animal is legally binding on whoever you put in charge of it. The trust ends when no animal it covers is still alive, unless your trust sets an earlier end. The state abolished the old rule limiting how long a noncharitable trust can run, so there's no outer year limit. Enforcement runs through a person you name as the enforcer, and if nobody is serving, the court appoints one, because a purpose trust here can't fail for want of an enforcer. Your enforcer can demand information and periodic accountings from the trustee, and can't be the trustee at the same time, so name two different people. A judge can reduce what you transferred if the fund substantially exceeds what the purpose needs, and the statute tells the court to consider letting the trust run for a reasonable time first. Anything cut goes where your trust directs, and if your trust is silent, under the residuary clause of your will or to your heirs. South Dakota didn't adopt the uniform pet trust section. It treats your pet trust as one kind of purpose trust, and it never requires the animal to have been alive while you were, only that your trust designates it, so describe the animals you mean as precisely as you can.
Last verified: July 17, 2026
Source: S.D. Codified Laws §§ 29A-2-101 to 29A-2-114 ↗If you die intestate (without a valid will) in South Dakota, S.D. Codified Laws §§ 29A-2-101 to 29A-2-114 decides who inherits everything a will would have covered. The shares depend on exactly who survives you: spouse, children, parents, siblings. What you told people you wanted doesn't matter. Only a signed will changes these defaults.
The $100,000 lump sum applies only when the decedent has a descendant who isn't the spouse's. South Dakota uses classic per stirpes representation (shares fixed at the children's generation), not the newer per-capita-at-each-generation system.
What your spouse inherits depends on who else survives you. The four common family shapes:
The decedent's descendants take everything by representation: living children take equal shares and a dead child's share passes down to that child's own descendants.
With no spouse or descendants the estate goes to the parents equally, then to the parents' descendants (siblings, then nieces and nephews), then half to the paternal grandparents or their descendants and half to the maternal side; if no one qualifies, the estate passes to the State of South Dakota (§ 29A-2-105).
Last verified: July 18, 2026
Source: SD Codified Law 34-12H, 59-7-2.1 ↗At a Glance
Living Will
Specifies end-of-life care wishes
Healthcare Proxy
Names a decision-maker for you
DNR / POLST
Do-not-resuscitate orders
South Dakota law recognizes advance directives, including Living Wills and Durable Powers of Attorney for Health Care. These documents allow you to make decisions about your medical treatment in advance or appoint someone to make them for you if you become unable to. An advance directive must be signed by the declarant in the presence of a notary public or two adult witnesses.
Discuss your advance directives with your healthcare providers and family members so your wishes are understood and respected.
A Durable Power of Attorney for Health Care (HCPOA) in South Dakota allows you to appoint an agent to make healthcare decisions on your behalf if you're incapacitated. This document can be a standalone form or combined with a Living Will into a single advance directive. The agent's authority typically becomes effective upon a physician's determination of your inability to make decisions.
South Dakota recognizes Medical Orders for Scope of Treatment (MOST) forms. A MOST form is a set of medical orders for patients with advanced illness or frailty, designed to ensure that their wishes regarding life-sustaining treatments are honored across healthcare settings. It's a physician's order, complementing an advance directive, and is intended for those who may die within a year or two or require long-term care.
Start with SD Codified Law 34-12H, 59-7-2.1, linked as this section's source. Use the current form or sample that the official source provides or identifies. Form authority and execution requirements vary by state, so confirm the source before signing and get legal help if your situation or the instructions are unclear.
South Dakota requires notarization and 2 adult witnesses, as shown in the requirements above. Anyone 18 or older of sound mind can make one.
Last verified: July 18, 2026
Source: S.D. Codified Laws ch. 34-26A (Crematories and Cremations); § 34-25-24 (permit for disposition) ↗At a Glance
A body may not be cremated until 24 hours after the time of death, or after the declaration of death by a coroner or other authorized person (SDCL 34-26A-13.1). A physician or the coroner can waive the wait in writing only when death resulted from a virulent communicable disease, and if a coroner is investigating the death, cremation must wait for the coroner's written release. The crematory can't cremate without a completed authorization form signed by the person holding the right of disposition under SDCL 34-26-75 (SDCL 34-26A-6.1), and a permit for disposition must be obtained before cremation (SDCL 34-25-24).
Green burial is legal in South Dakota and is generally unregulated, allowing for the burial of unembalmed bodies in biodegradable containers or shrouds. There are no specific state laws prohibiting home burial, but local zoning and health ordinances should be consulted. Human composting and alkaline hydrolysis aren't explicitly regulated or widely available as burial alternatives in South Dakota.
Funeral homes and funeral service practitioners in South Dakota are licensed and regulated by the South Dakota Board of Funeral Service. They're required to comply with state laws regarding consumer protection, including price disclosures. The Federal Trade Commission (FTC) Funeral Rule also applies, requiring funeral providers to give consumers an itemized price list.
South Dakota sets this order by statute. The first person on the list who is available and willing decides, and a funeral home takes its instructions from them.
Naming someone in advance. Yes, a separate notarized affidavit. SDCL 34-26-77 lets a person 18 or older and of sound mind execute an affidavit before a notary public in substantially the printed form: "I, __________, do hereby designate __________ with the right to control the disposition of my remains upon my death. I __ have/ __ have not attached specific directions concerning the disposition of my remains which the designee shall substantially comply with, provided such directions are lawful and there are sufficient resources in my estate to carry out the directions." No witnesses are required beyond the notary, and no advance directive route is provided.
When the same tier disagrees. SDCL 34-26-78. The court of the county where the decedent resided may award the right of disposition to the person it determines is most fit and appropriate, and may decide about the remains if those sharing the right cannot agree. If the holders are two or more persons with the same relationship to the decedent and they cannot decide by majority vote, any of them or a funeral home with custody may petition the court. The court weighs six factors: reasonableness and practicality of the proposed arrangements, degree of personal relationship with the decedent, the desires of whoever is ready, able and willing to pay, the convenience and needs of other families and friends, the desires of the decedent, and the degree to which the arrangements allow maximum participation. A funeral home is not liable for holding the remains until it gets a court order or a signed written agreement, and may add embalming, refrigeration and sheltering costs to the final bill.
South Dakota has a hard clock and a broad forfeiture rule. Under SDCL 34-26-76 a person forfeits the right, and it passes to the next qualifying person, if they are charged with first- or second-degree murder or voluntary manslaughter in connection with the death and the funeral director knows of the charges (the right returns if the charges are dismissed or the person is acquitted); if they fail to exercise the right within two days of notification of the death or three days of the funeral home taking possession, whichever is earlier; if they are the spouse and a petition to dissolve the marriage was pending at death; or if a court finds under § 34-26-78 that they were estranged from the decedent, meaning a physical and emotional separation at the time of death lasting long enough to clearly demonstrate an absence of due affection, trust, and regard. Route note: sdlegislature.gov/Statutes/34-26-75 is a JavaScript single-page app and returns no statute text to a plain client. The text quoted here was read from the official South Dakota Legislature API at https://sdlegislature.gov/api/Statutes/Statute/34-26, which returns the full chapter, and cross-checked against https://sdlegislature.gov/api/Statutes/Statute/34-26-1.
Source: S.D. Codified Laws § 34-26-75 (Disposition of remains, control, right and duty), with §§ 34-26-73, 34-26-74, 34-26-76, 34-26-77, 34-26-78
Three separate pots of money, on three different agencies' websites, collected nowhere. A family that qualifies for all three usually claims none of them.
1. When nobody can pay. County burial or cremation under SDCL chapter 28-17, titled "County Burial." There's no statewide program and no statewide dollar amount. The board of county commissioners. Call the county auditor's office or the commission office in the county where the person lived.
What it pays. Not published statewide. SDCL 28-17-4 says the county pays the funeral director "a sum to be established by resolution of the board of county commissioners at the annual organizational meeting." That means the amount is set county by county and reset every year, so the only way to learn it is to ask that county.
What disqualifies you. Two statutes describe who's covered. SDCL 28-17-1 covers a person who dies in a county "who does not have money or means necessary to defray the funeral expenses, and whose relatives or friends are unable or unwilling to defray the expenses." SDCL 28-17-2 covers a person "who is destitute and has no estate," who has "no one legally bound for funeral expenses," and where "there is no other source to pay the cost of burial or cremation expense." Note that "unable or unwilling" is the statute's own language, so a family that simply can't pay qualifies. Who pays: the county where the person lived at the time of death. If no residence can be determined, the county where the death happened. Under SDCL 28-17-3 the tribe or the next of kin picks the funeral director and decides burial or cremation, and the county commissioners can't advertise for bids.
2. If the death was caused by a crime. Up to $8,000 for basic funeral and burial, inside a total cap of $15,000 per claimant per victim. ARSD 67:55:04:17 says "Payment for basic funeral and burial expenses may not exceed $8,000" and lists what that covers: transporting the body to the funeral home; professional care of the remains including embalming, cremation, cosmetology, minor restorative work, and dressing and casketing; use of facilities for a funeral service; the cemetery plot; the casket; a public notice of the death; opening and closing the grave; a grave liner; the funeral coach to the cemetery; certified copies of the death certificate; "a headstone or grave marker"; and "miscellaneous expenses including clothing for the deceased; fees or gifts for the clergy, soloist, or organist; flowers; food and nonalcoholic beverages; memorial brochures; guest books; acknowledgement cards; give-away items," plus the cost of a one-year memorial service if one is held. There are no sub-caps inside the $8,000. The rule bars reimbursement for alcohol or tobacco and for "the transportation, lodging costs, or lost wages or income of family members," and requires an itemized receipt. SDCL 23A-28B-21: "Compensation granted to any claimant suffering economic loss as the result of injury to or death of any one victim may not exceed fifteen thousand dollars."
South Dakota crime victim compensation ↗
3. Money the person was already owed. Search South Dakota's unclaimed property before you borrow anything. Searching and claiming are free.
South Dakota unclaimed property ↗
South Dakota runs this county by county. There's no state fund and no state dollar figure, so the number depends entirely on which county you call. What to do, in order. 1. Call the county where the person lived, not where you live. SDCL 28-17-2 puts the bill on the county of residence at the time of death. Only if no residence can be determined does it fall to the county where the death happened. Ask for the county auditor or the county commission office and say you need to talk to someone about a county burial under SDCL chapter 28-17. 2. Ask that county what sum the commissioners set this year. SDCL 28-17-4 makes each county set its own amount by resolution at the annual organizational meeting. Nobody can tell you the figure but that county. 3. Pick the funeral home yourself. SDCL 28-17-3 says the selection of a funeral director and the choice between burial and cremation "may be made by the tribe or next of kin." You don't have to take whoever the county names. If the person was a member of a tribe, the tribe has that same right. 4. If the person was an honorably discharged soldier, sailor, marine, or aviator, SDCL 28-17-6 sends the funeral to a different chapter of law, SDCL chapter 33A-5, so tell the county that up front. 5. If the death was a crime, apply to the Crime Victims' Compensation Program at the South Dakota Department of Public Safety, 605-773-6317. Report to law enforcement within five days of the crime (or within five days of when a report could reasonably be made) and file the application within one year of the death. The department can waive the one-year deadline for good cause. 6. Search for money the person left behind at cash.sd.gov, run by the State Treasurer. It's free.
Last verified: July 16, 2026
Source: South Dakota Department of Revenue ↗At a Glance
South Dakota is one of many states that doesn't levy a state-level estate tax. This means that your estate won't be subject to an additional tax by the state of South Dakota upon your death, regardless of its value.
While South Dakota has no state estate tax, residents are still subject to the federal estate tax if their estate exceeds the federal exemption amount.
South Dakota doesn't impose an inheritance tax. This tax, which is paid by the beneficiaries who inherit assets, was repealed in South Dakota effective July 1, 2001. Therefore, beneficiaries inheriting property in South Dakota won't owe state inheritance tax.
The federal estate tax applies to estates over $15 million per person (2026), $30 million for married couples. This is separate from any state estate or inheritance tax. The Working Families Tax Cuts Bill (Public Law 119-21, 2025) made the higher exemption permanent, so the drop to roughly $7 million once scheduled under the Tax Cuts and Jobs Act never took effect.
No. South Dakota has no state estate tax. Only the federal estate tax applies, and only to estates over $15 million per person (2026), $30 million for a married couple.
No. South Dakota doesn’t tax inheritances. Heirs owe no state tax on what they receive.
$15 million per person, $30 million for a married couple, indexed for inflation. The Working Families Tax Cuts Bill (Public Law 119-21, 2025) made the higher exemption permanent. Estates below the threshold owe no federal estate tax.
Last verified: August 8, 2026
Source: SD Codified Law 34-26-67, Donate Life Midwest ↗At a Glance
In South Dakota, you can register to be an organ, eye, and tissue donor through several methods. Registering ensures your decision to donate is legally recognized and honored.
In South Dakota, a registered organ donor decision is legally binding. Nobody else can make, amend, or revoke the gift after your death (SDCL 34-26-55(a)). One exception: if the donor is an unemancipated minor, a parent who is reasonably available can revoke or amend the gift (SDCL 34-26-55(g)). Organ procurement organizations still consult families in practice, so tell yours what you decided.
Need Help in South Dakota?
Wills, trusts, advance directives, and probate all benefit from a licensed professional. We've compiled a directory of funeral directors, grief counselors, hospice providers, and financial advisors. Sorted by state. Before a listing appears, we check the provider's phone and address against the provider's own website.
Find Help in South Dakota →From The MORTL Edit
Sources: South Dakota Codified Laws Title 29A (Probate and Succession), Title 34 (Public Health and Safety), Title 59 (Agency). Individual sections are updated and re-dated whenever a law changes, which is why the date at the top of the guide can be newer than this one. The whole guide also gets a front-to-back review on a schedule. Last front-to-back review: June 2026.
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