When to Update Your Will in South Dakota

A will that reflected your wishes five years ago may actively work against your family today. Marriages, divorces, births, deaths, and asset changes all create gaps between what your will says and what you actually want — and South Dakota law fills those gaps with default rules that may surprise you.

The general recommendation is to review your estate plan every three to five years. But certain life events should trigger an immediate review, regardless of when you last updated.

Marriage: The Omitted Spouse Trap

If you get married after executing your will and the will does not provide for your new spouse, South Dakota's omitted spouse statute (SDCL 29A-2-301) generally entitles your new spouse to an intestate share, subject to statutory exceptions. That share could be your entire estate if all your children are also your new spouse's children.

Absent a statutory exception, a will that leaves everything to your children from a previous marriage can be partially overridden by default. Your new spouse claims their intestate share first, and only the remainder passes according to your will.

The safest way to avoid an unintended result is to update your will after marriage. South Dakota also recognizes exceptions when the will was made in contemplation of the marriage, states that it remains effective despite a subsequent marriage, or an outside transfer was intended in lieu of a testamentary provision.

Divorce: Automatic Revocation of Ex-Spouse Provisions

South Dakota law (SDCL 29A-2-804) generally revokes revocable provisions in your will that benefit a former spouse after divorce or annulment, subject to exceptions in the governing instrument, a court order, or a contract. Your ex-spouse is treated as if they predeceased you.

This sounds protective, but it creates its own problems. If you named your ex-spouse as executor, that appointment is also revoked — and if you didn't name a backup, the court appoints someone. If your ex-spouse was the residuary beneficiary (receiving everything not specifically bequeathed), those assets pass as if your ex died before you, which may route them to people you didn't intend.

The automatic revocation can also reach certain revocable beneficiary designations after divorce under SDCL 29A-2-804, but federal law, contracts, and account rules can affect the result. Update beneficiary designations on life insurance, retirement accounts, and payable-on-death bank accounts directly rather than relying on the default rule.

Birth or Adoption of a Child

South Dakota's omitted child statute (SDCL 29A-2-302) provides a share for children born or adopted after your will was executed if they are neither mentioned nor provided for in the will, subject to statutory exceptions.

If you're a single parent, updating your will after the birth of a child is especially critical. Your will is the primary document where you nominate a guardian for your minor children. Without a guardian nomination, the court decides who raises your children — and that decision may not align with your wishes.

Death of a Beneficiary or Executor

If someone named in your will — a beneficiary, your executor, or a guardian nominee — dies before you, your will may have a gap. Some wills include contingent beneficiaries and backup executors. Many don't.

Without updates, the deceased person's share may pass through your estate's residuary clause, or through intestacy if no residuary clause exists. Either outcome may send assets to people you wouldn't have chosen.

Significant Asset Changes

Major purchases (a home, a business, farmland), significant sales, or large inheritance all change the landscape your will was designed around. A will that divides "all my assets equally" between three children may work fine, but a will that leaves specific assets to specific people — the house to one child, the farm to another, the investment account to a third — can become wildly unequal if asset values shift.

South Dakota farm and ranch families are particularly vulnerable here. Agricultural land values can appreciate substantially over a few years, creating imbalances in estate plans that assigned specific parcels to specific heirs.

How to Update: Codicil vs. New Will

A codicil is a formal amendment to an existing will. It must meet the same execution requirements as the original will — signed by you, witnessed by two people, and ideally notarized with a self-proving affidavit under SDCL 29A-2-504. Codicils work for minor changes: adding a beneficiary, changing an executor, or adjusting a specific bequest.

A new will is better for substantial changes. Each new will should include a clause revoking all prior wills and codicils. This prevents confusion about which document controls.

Under SDCL 29A-2-507, you can revoke a will by executing a later will that expressly revokes it, or by a physical act (burning, tearing, canceling, or obliterating) performed by you or by someone in your conscious presence and at your direction.

One critical warning: do not rely on handwritten changes directly on a typed or printed will. A handwritten change that does not follow the ordinary execution rules may require clear-and-convincing proof under SDCL 29A-2-503 that the testator intended it as an alteration. Use a formal codicil or a new will with proper execution ceremonies instead.

A Quick Review Checklist

Pull out your will and check:

• Are all named beneficiaries still alive and still the people you want to receive your assets?
• Is your named executor still willing and able to serve?
• If you have minor children, is your guardian nomination still current?
• Have you married, divorced, or had children since the will was signed?
• Have you acquired or sold significant assets?
• Are your beneficiary designations on retirement accounts, life insurance, and bank accounts consistent with your will?
• Does your will still reflect your actual wishes?

If any answer is no, it's time to update. The South Dakota Basic Estate Planning Kit includes the coordination tools to ensure your will, beneficiary designations, TOD deeds, and powers of attorney all work together after life changes.

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