South Dakota § 29A-2-211 - Proceeding for elective share--Time limit.

§ 29A-2-211. Proceeding for elective share--Time limit.

(a) Unless the time for filing an election is extended under subsection (b), the election must be made by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within nine months after the date of the decedent's death, or within four months after the admission to either informal or formal probate of the will of the decedent to which the election applies, whichever limitation later expires. Notice of hearing on the election must be given to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share. The decedent's nonprobate transfers to others are not included within the augmented estate for the purpose of computing the elective share if the petition is filed more than nine months after the decedent's death or beyond the time extended by the court under subsection (b).

(b) Within nine months after the decedent's death, a petition for an extension of time for making an election may be filed and the court may grant the petition for good cause shown. Notice of the petition must be given to all persons interested in the decedent's nonprobate transfers to others.

(c) A demand for an elective share may be withdrawn at any time before entry of a final determination by the court.

(d) After notice and hearing, the court shall determine the elective-share and supplemental elective-share amounts, and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under §§ 29A-2-209 and 29A-2-210. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than the person would have been under §§ 29A-2-209 and 29A-2-210 had relief been secured against all persons subject to contribution.

(e) An order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.

Source: SL 1995, ch 167, § 2-211.