What a Surviving Spouse Should Know After an Intestate Death in South Dakota

Quick overview: If your spouse died without a will in South Dakota, state intestacy law and the probate court determine who gets property and who makes estate decisions. You have legal rights — including the right to petition the court to open probate, seek appointment as personal representative, claim certain exempt property and allowances, and control or challenge dispositions of assets and the estate administration. This article explains the common rights and steps to protect them. This is general information and not legal advice; consult a South Dakota attorney for case-specific guidance.

Detailed Answer

1. Who controls estate decisions when there is no will?

When a person dies intestate (without a valid will), no one automatically has authority to act for the estate. Family members may attempt to make decisions, but the lawful process is to open probate with the South Dakota probate court. The court appoints a personal representative (sometimes called an executor or administrator). As the surviving spouse, you have standing to petition the court to be appointed personal representative. If you are appointed, you gain legal authority to collect assets, pay debts, and distribute property under state law.

See South Dakota probate law for the formal rules governing appointment and administration: South Dakota Codified Laws, Title 29A (Uniform Probate Code). You can read Title 29A here: https://sdlegislature.gov/Statutes/Codified_Laws/DisplayStatute?Type=Statute&Statute=29A.

2. What does intestate succession mean for the surviving spouse?

Intestate succession rules determine who inherits the decedent’s probate property when there is no will. As surviving spouse you are generally the highest-priority heir. The exact share you receive depends on whether the decedent left children or other descendants and whether those descendants are also your children. The probate court distributes the estate according to South Dakota’s intestacy rules. For statutory detail, see the intestacy provisions in the South Dakota probate code (Title 29A).

3. Immediate legal rights you should assert

Right to petition the probate court to open an intestate estate and to be appointed personal representative.
Right to be notified of probate proceedings and to object to petitions filed by others.
Right to claim statutory spousal protections such as exempt property and a family allowance while the estate is being administered (these protect a spouse’s support during probate).
Right to access information about estate assets, debts, and accountings once administration begins.

Key statutory protections for surviving spouses are located in the probate statutes (Title 29A). Review those provisions or ask an attorney to point to the exact sections that apply to exempt property and allowances.

4. Who has the legal right to control funeral and burial decisions?

Decisions about funeral arrangements and the disposition of remains may follow a separate statutory priority list from probate succession. Typically the deceased may express a preference in writing (a funeral directive). If no directive exists, South Dakota law provides an order of priority for who can control disposition. If the decedent’s family is excluding you, filing a petition or seeking a court order can clarify and enforce who has legal authority.

5. Financial accounts, insurance, and beneficiary designations

Not all assets pass through probate. Payable-on-death accounts, jointly held property with rights of survivorship, life insurance and retirement accounts with named beneficiaries pass outside probate to the named survivors. If you are the named beneficiary or joint owner, the family cannot override that designation through probate. Gather documents that show ownership and beneficiary designations and contact the account holders or plan administrators promptly.

6. What if the family is actively excluding you?

If family members try to lock you out of estate business—preventing you from getting information, controlling the funeral, or dealing with bank accounts—you have several options:

File a petition in probate court to open the intestate estate and to be appointed or to challenge an appointment. The court can issue orders stopping third parties from moving assets.
Ask the court for temporary or emergency relief if assets are at risk or if you need immediate authority to arrange the funeral or preserve property.
If someone is hiding or taking property belonging to the estate, the court can order return of property and may impose sanctions.
Consider mediation or negotiated resolution if family conflict makes court slow and costly, but only after preserving urgent rights through court filings if needed.

7. Time limits and practical deadlines

Probate has procedural deadlines—creditor claim periods, timelines for filing petitions, and notice requirements. Acting promptly protects your rights. For example, if you want to be personal representative you should file as soon as possible so the court can decide and issue letters of appointment allowing you to act for the estate. Check the specific timelines in South Dakota’s probate statutes (Title 29A) or ask a lawyer about deadlines that affect your case.

8. When to hire an attorney

Seek a South Dakota probate attorney if:

Family members are preventing you from accessing the decedent’s remains, property, or financial information.
Someone filed a competing petition for appointment or is acting as if they control the estate without court authority.
The estate holds significant assets or complex property (business interests, real estate, out-of-state assets, or disputes over heirs).
You are unsure about claiming exempt property, allowances, or contesting actions by others.

An attorney can file petitions, obtain emergency orders, and represent your interests in court or settlement talks.

Helpful Hints

Act quickly: preserve evidence, secure important documents (death certificate, marriage certificate, bank statements, titles, beneficiary forms).
Check beneficiary designations and joint-title documents before starting probate—these often control distribution outside probate.
File to open probate even if assets seem small; probate gives you legal authority and stops others from making unilateral decisions.
Document any interference by family members (texts, emails, witness statements). Courts consider this evidence if you need urgent orders.
Contact the county probate court clerk to learn local procedures and filing forms for intestate administration.
If cost is a concern, ask attorneys about limited-scope representation or initial consultations to get immediate next steps.

Where to find the statutes: South Dakota’s probate and intestacy provisions are in Title 29A of the South Dakota Codified Laws. You can begin your review here: https://sdlegislature.gov/Statutes/Codified_Laws/DisplayStatute?Type=Statute&Statute=29A.

Final note / Disclaimer: This article provides general information about South Dakota probate and surviving spouse rights. It is not legal advice and does not create an attorney-client relationship. Laws change and each situation is unique. To protect your legal rights and to get advice tailored to your circumstances, consult a licensed South Dakota attorney promptly.