South Dakota Transfer-on-Death Deed

At a glance

How the deed works

South Dakota has adopted the Uniform Real Property Transfer on Death Act, enacted in 2014 as the South Dakota Real Property Transfer on Death Act and codified at SDCL §§ 29A-6-401 and following (Title 29A, ch. 29A-6, Non-Probate Transfers), effective July 1, 2014. An owner may transfer real property to one or more beneficiaries effective at death, outside probate, while keeping full lifetime control.

The deed must contain the essential elements and formalities of a recordable inter vivos deed, expressly state that the transfer to the designated beneficiary occurs at the transferor's death, and be recorded before the transferor's death in the office of the register of deeds in the county where the property is located. The deed is effective without notice to, delivery to, acceptance by, or consideration from the beneficiary during the owner's life.

Consistent with the uniform model, the TOD deed is nontestamentary and revocable even if it says otherwise, and the capacity required to make or revoke it is the same as the capacity to make a will.

Recording & execution requirements

A transfer-on-death deed only works if it is executed and recorded correctly. In South Dakota:

• Recording before death: Must be recorded before the owner's death.
• Governing statute: S.D. Codified Laws §§ 29A-6-401 et seq. South Dakota Real Property Transfer on Death Act (SDCL ch. 29A-6, §§ 29A-6-401 et seq.) · effective July 1, 2014 (2014 HB 1077).

Changing or revoking the deed

A recorded TOD deed is revoked only by a later instrument — a new TOD deed, an express instrument of revocation, or an inter vivos deed that expressly revokes it — that is acknowledged by the transferor after the deed being revoked and recorded before the transferor's death in the county where the deed is recorded.

Where more than one transferor made the deed, revocation by one transferor does not affect another's interest, and a deed of joint owners is revoked only if all living joint owners revoke it. After a TOD deed is recorded, it cannot be revoked by a mere revocatory act (such as destroying the document).

Mortgages, Medicaid & community property

Existing mortgages and liens

A TOD deed passes the property subject to existing encumbrances. The beneficiary takes the interest as it stood at the owner's death — mortgages, deeds of trust, judgment liens, and tax liens survive the transfer and remain the beneficiary's responsibility; the deed does not discharge secured debt.

Medicaid estate recovery

A TOD deed does not automatically protect the home from South Dakota's Medicaid estate recovery, administered by the Department of Social Services, which pursues recovery from the estates of deceased long-term-care recipients and can define 'estate' to reach certain nonprobate interests. Anyone using a TOD deed for Medicaid planning should confirm the current recovery scope with South Dakota DSS and an attorney licensed in South Dakota.

Community property

South Dakota is a common-law (separate-property) state. South Dakota is a common-law (separate-property) state, but it offers an elective/opt-in community-property regime through the South Dakota Special Spousal Property Trust (SDCL ch. 55-17), which spouses must affirmatively adopt. Absent that election, a married owner's TOD deed passes only that owner's separate interest, and a surviving joint owner's survivorship right generally takes priority over a beneficiary designation.

State-specific quirks

Where to read next

• South Dakota estate & inheritance tax — whether South Dakota taxes what you leave behind, and the small-estate probate ceiling, each figure cited to the statute.
• The Executor & Heir’s Guide — the probate deadlines for South Dakota, cited to the controlling statute.
• Funding a revocable trust — a common way to keep many kinds of property out of probate.
• ← Back to the transfer-on-death deed comparison

Sources & methodology