(a) In a proceeding for an elective share, the following are applied first to satisfy the electiveshare 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;

Ask a will, trust or estate question, get an answer ASAP!
Thousands of highly rated, verified estate & trust lawyers.
Click here to chat with a lawyer about your rights.

Terms Used In South Dakota Codified Laws 29A-2-209

  • Decedent: A deceased person.
  • Intestate: Dying without leaving a will.
  • Probate: Proving a will
  • Testate: To die leaving a will.

(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 electiveshare 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 electiveshare amount is not fully satisfied or the surviving spouse is entitled to a supplemental electiveshare 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 electiveshare amount or the supplemental electiveshare 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 electiveshare amount or for the supplemental electiveshare 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 electiveshare or supplemental electiveshare 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 electiveshare or supplemental electiveshare 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.

Source: SL 1995, ch 167, § 2-209.