South Dakota Codified Laws 29A-2-603. Anti-lapse–Deceased devisee–Class gifts
(a) If an individual named as a devisee in a will dies before the will was executed, or dies after the will was executed and before the testator, the devise fails unless (i) the devisee is a grandparent, a descendant of a grandparent, a stepchild, or a descendant of the stepchild of the testator and (ii) the devisee left descendants who survive the testator. Those descendants take by representation the property to which the devisee would have been entitled had the devisee survived the testator.
(b) If a devise is made in the form of a class gift and a devisee (member of the class) dies before the will was executed, or dies after the will was executed and before the testator, the share of the devisee fails, passes to the surviving members of the class, or passes to the surviving descendants of any deceased members of the class, as the case may be, unless (i) the devisee is a grandparent, a descendant of a grandparent, a stepchild, or a descendant of a stepchild of the testator and (ii) the devisee left descendants who survive the testator. Those descendants take by representation the property to which the devisee would have been entitled had the devisee survived the testator.
Terms Used In South Dakota Codified Laws 29A-2-603
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Devise: To gift property by will.
- Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
- Property: includes property, real and personal. See South Dakota Codified Laws 2-14-2
- Testator: A male person who leaves a will at death.
(c) For purposes of this section:
(1) “Class gift” excludes a devise to “issue,” “descendants,” or “heirs of the body,” the disposition of which is controlled by § 29A-2-708, and excludes a devise to “heirs,” “next of kin,” “relatives,” “family,” or a class described by language of similar import, the disposition of which is controlled by § 29A-2-711.
(2) “Devise” excludes a future interest in trust, the disposition of which is controlled by § 29A-2-707, and “devisee” excludes a beneficiary thereof.
Source: SL 1995, ch 167, § 2-603.