South Dakota § 29A-2-302 - Omitted children.

§ 29A-2-302. Omitted children.

(a) A child born to or adopted by the testator after the execution of the will who is neither mentioned nor provided for in the will is entitled to receive a share in the estate as follows:

(1)    If the testator had no child living when the will was executed, the omitted after-born or after-adopted child receives a share in the estate equal in value to that which the child would have received had the testator died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to take under the will. In satisfying the share, devises made by the will abate under § 29A-3-902.

(2)    If the testator had one or more children living when the will was executed, and the will devised property or an interest in property to one or more of the then-living children:

(i)    The portion of the testator's estate in which the omitted after-born or after-adopted child is entitled to share is limited to the devises made to the testator's then-living children.

(ii)    The omitted after-born or after-adopted child is entitled to receive the portion of the devised property or interest in property that the child would have received had the testator included all omitted after-born and after-adopted children with the children to whom devises were made and had given each child an equal share of the devises.

(iii)    To the extent feasible, the interest granted the omitted after-born or after-adopted child must be of the same character, whether equitable or legal, present or future, as that devised to the testator's then-living children.

(iv)    In satisfying the share, devises to the testator's children who were living when the will was executed abate ratably. In abating the devises, the court shall preserve to the maximum extent possible the character of the testamentary plan adopted by the testator.

(3)    Despite the foregoing, an omitted after-born or after-adopted child may not receive a share in the estate if the testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence.

(b) For purposes of this section, a child whom the testator failed to provide for by will because the testator believed the child to be dead shall be considered an omitted after-born or after-adopted child.

Source: SL 1995, ch 167, § 2-302.