CHAPTER 43-31

HOMESTEAD EXEMPTION

43-31-1    Homestead exempt from judicial sale, judgment lien, and mesne or final process--Mobile homes--Senior citizens.

43-31-2    Homestead limited to house or mobile home and appurtenant buildings--Business place--Minimum size of mobile home.

43-31-3    Homestead containing one or more lots or tracts of land--Contiguous tracts--Use in good faith.

43-31-4    Limited area of homestead--Mineral lands.

43-31-5    Homestead exemption does not apply to gold and silver mines and mills.

43-31-6    Selection of homestead, marking, platting, and recording--Execution against unselected homestead--Officer may mark off, plat, and record--Expense embraced in execution.

43-31-7    Marking off and platting of homestead--Exception.

43-31-8    Description of homestead--Recording.

43-31-9    Change of homestead--Metes and bounds--Record of description--Prior conveyances or liens not prejudiced--Effect of nonconcurrence of spouse.

43-31-10    Change of homestead reserved by order of court for minor children--Petition--Notice--Prior conveyances or liens not prejudiced.

43-31-11    New homestead--Extent of exemption.

43-31-12    Disagreement as to extent of homestead--Determination by circuit court.

43-31-13    Possession and occupancy of homestead--Surviving spouse--Minor children.

43-31-13.1    Owner's absence pursuant to protection order not waiver or abandonment of owner's interest.

43-31-14    Family defined.

43-31-15    Descent of homestead--Exemption from debts of owner--Exception.

43-31-16    Sale of homestead for payment of debts where no husband or wife surviving, and no issue.

43-31-17    Execution by husband and wife necessary for conveyance or encumbrance--Exception for prisoner of war or missing in action.

43-31-18    Application by spouse of protected person for conveyance or encumbrance by conservator.

43-31-19    Application for order requiring guardian of mentally ill or incompetent spouse to join in conveyance or mortgage of homestead--Verification--Contents.

43-31-20    Time and place for hearing application for order requiring guardian of mentally ill or incompetent spouse to join in conveyance or mortgage of homestead--Order fixing.

43-31-21    Service of application and order for conservator of incapacitated spouse to join in conveyance or mortgage of homestead.

43-31-22    Appointment of guardian ad litem on whom service of application and order may be made to require incapacitated spouse to join in conveyance or mortgage of homestead.

43-31-23    Order of court on application to require guardian of mentally ill or incompetent spouse to join in conveyance or mortgage of homestead--Findings of fact and conclusions of law.

43-31-24    Court determination as to incapacity--Order to conservator to join in conveyance or encumbrance.

43-31-25    Appointment of conservator to join in conveyance or encumbrance for incapacitated spouse--No bond--Termination of conservatorship.

43-31-26    Recording of certified copy of order requiring guardian of mentally ill or incompetent spouse to join in conveyance or mortgage of homestead.

43-31-27    Devise or bequest of homestead subject to rights of surviving spouse.

43-31-28    43-31-28. Repealed by SL 1986, ch 27, § 46.

43-31-29    Homestead liable for accrued taxes--Sale for payment of taxes certified and recorded--Exceptions. =

43-31-30    Certain federal bankruptcy exemptions not available.

43-31-31    Repealed.

43-31-32    Repealed.

43-31-33    Repealed.

43-31-34    Repealed.

43-31-35    Repealed.

43-31-36    Repealed.

43-31-37    Repealed.

43-31-38    Repealed.

43-31-39    Repealed.

43-31-40    Repealed.

43-31-41    Repealed.

43-31-1. Homestead exempt from judicial sale, judgment lien, and mesne or final process--Mobile homes--Senior citizens.

The homestead, including a homestead listed for sale, of every family, resident in this state, so long as it continues to possess the character of a homestead is exempt from judicial sale, from judgment lien, and from all mesne or final process from any court, to the extent and as provided by statute. However, a creditor or lien holder of a mobile home classified as a homestead under § 43-31-2 prior to January 1, 1973, may not be cut off and is not subject to a homestead exemption. In addition, a homestead with a value of less than one hundred seventy thousand dollars of a person seventy years of age or older, and the unremarried surviving spouse of such person, is exempt from sale for taxes for so long as it continues to possess the character of a homestead.

Source: SL 1862, ch 37, § 1; SL 1874-5, ch 37, § 1; PolC 1877, ch 38, § 1; CL 1887, § 2449; SL 1890, ch 86, § 1; RPolC 1903, § 3215; RC 1919, § 449; SDC 1939, § 51.1701; SL 1972, ch 233, § 5; SL 1980, ch 296, § 1; SL 2005, ch 234, § 1; SL 2015, ch 223, § 1.

43-31-2. Homestead limited to house or mobile home and appurtenant buildings--Business place--Minimum size of mobile home.

The homestead embraces the house used as a home by the owner of it, being either, real property or a mobile home, and if the owner has two or more houses or mobile homes thus used at different times and places, the owner shall select which he or she will retain as a homestead.

The homestead may not embrace more than one dwelling house or any other buildings except such as are properly appurtenant to the homestead. A shop, store, or other building situated on real property and really used or occupied by the owner in the prosecution of the owner's own ordinary business may be deemed appurtenant to the owner's homestead.

A mobile home may include any vehicle without motive power which can provide adequate, comfortable, all season quarters for the purpose of making it a residence and which vehicle is larger than two hundred forty square feet, measuring at the base of the vehicle. The mobile home must be registered in South Dakota at least six months prior to the claim of exemption.

Source: SL 1874-5, ch 37, §§ 6, 9; PolC 1877, ch 38, §§ 6, 9; CL 1887, §§ 2454, 2457; RPolC 1903, §§ 3222, 3225; RC 1919, §§ 456, 457; SDC 1939, § 51.1708; SL 1972, ch 233, § 6; SL 2015, ch 223, § 2.

43-31-3. Homestead containing one or more lots or tracts of land--Contiguous tracts--Use in good faith.

The homestead may contain one or more lots or tracts of land with the buildings thereon and other appurtenances, subject to the limitations contained in this code, but must in no case embrace different lots and tracts unless they are contiguous, or unless they are habitually and in good faith used as part of the same homestead.

Source: SL 1874-5, ch 37, § 7; PolC 1877, ch 38, § 7; CL 1887, § 2455; RPolC 1903, § 3223; RC 1919, § 458; SDC 1939, § 51.1709.

43-31-4. Limited area of homestead--Mineral lands.

If within a town plat the homestead must not exceed one acre in extent, and if not within a town plat, it must not embrace in the aggregate more than one hundred sixty acres. If the homestead is claimed upon any land, the title or right of possession to which was acquired or claimed under the laws of the United States, relating to mineral lands, then the area of the homestead, if within a town plat, shall not exceed one acre, and if without a town plat it must not exceed forty acres, if title thereto has been acquired as a placer claim, but if the title has been acquired under the laws of Congress as a lode mining claim, the area of such homestead shall not exceed five acres.

Source: SL 1874-5, ch 37, § 8; PolC 1877, ch 38, § 8; SL 1885, ch 65, § 2; CL 1887, § 2456; RPolC 1903, § 3224; SL 1909, ch 136; RC 1919, § 459; SDC 1939, § 51.1710.

43-31-5. Homestead exemption does not apply to gold and silver mines and mills.

No lode mining claim embracing any gold or silver mine, nor any gold or silver mill, nor any mill, smelter, or machinery intended or used for the reduction or milling of gold or silver ores shall be susceptible of being claimed or set off as exempt as a homestead.

Source: SL 1885, ch 65, § 1; CL 1887, § 2468; RPolC 1903, § 3236; RC 1919, § 460; SDC 1939, § 42.0101.

43-31-6. Selection of homestead, marking, platting, and recording--Execution against unselected homestead--Officer may mark off, plat, and record--Expense embraced in execution.

The owner or the husband or wife may select the homestead, and cause it to be marked off, platted, and recorded as provided in this code. If not so marked off, platted, and recorded, the officer having an execution against the property of such a defendant may cause the homestead to be marked off, platted, and recorded, and may add the expense thence arising to the amount embraced in his execution.

Source: SL 1874-5, ch 37, § 10; PolC 1877, ch 38, § 10; CL 1887, § 2458; RPolC 1903, § 3226; RC 1919, § 461; SDC 1939, § 51.1711.

43-31-7. Marking off and platting of homestead--Exception.

The homestead shall be marked off by fixed and visible monuments and platted, unless the same shall embrace the whole of a subdivision or lot, and in giving the description thereof, then marked off and platted as aforesaid, the direction and distance of the starting point from some corner of the dwelling house shall be stated.

Source: SL 1874-5, ch 37, § 11; PolC 1877, ch 38, § 11; CL 1887, § 2459; RPolC 1903, § 3227; RC 1919, § 462; SDC 1939, § 51.1712.

43-31-8. Description of homestead--Recording.

The description of the homestead, certified and acknowledged by the owner, shall be recorded by the register of deeds of the proper county.

Source: SL 1874-5, ch 37, § 11; PolC 1877, ch 38, § 11; CL 1887, § 2459; RPolC 1903, § 3227; RC 1919, § 462; SDC 1939, §§ 51.1712, 51.1713; SL 1981, ch 13, § 11; SL 2008, ch 226, § 1.

43-31-9. Change of homestead--Metes and bounds--Record of description--Prior conveyances or liens not prejudiced--Effect of nonconcurrence of spouse.

The owner may from time to time change the limits of the homestead by changing the metes and bounds, as well as the record of the description, or may change it entirely; but such changes shall not prejudice conveyances or liens made or created previously thereto; and no such change of the entire homestead made without the concurrence of the husband or wife shall affect his or her rights or those of the children.

Source: SL 1874-5, ch 37, § 12; PolC 1877, ch 38, § 12; CL 1887, § 2460; RPolC 1903, § 3228; RC 1919, § 463; SDC 1939, § 51.1714; SL 1961, ch 263.

43-31-10. Change of homestead reserved by order of court for minor children--Petition--Notice--Prior conveyances or liens not prejudiced.

If any court by order has reserved a homestead according to law for the use, occupancy, or possession of any surviving minor children of a decedent, or any minor, such court may, during the minority of such minor, on the filing of an application by any person interested in the property, or any guardian ad litem of the minor, or any conservator of the minor, requesting a change of homestead and setting forth facts sufficient to show that such action by the court would be to the best interest and benefit to such minor, change the limits of the homestead by changing the metes and bounds, as well as the record of the description, or may change it entirely. The application shall be heard by the court issuing the original order upon such notice as the court shall deem necessary; but such changes shall not prejudice conveyances or liens made or created previously thereto.

Source: SDC 1939, § 51.1714 as added by SL 1961, ch 263; SL 1993, ch 213, § 236; SL 1995, ch 167, § 186.

43-31-11. New homestead--Extent of exemption.

The new homestead shall in all cases be exempt to the same extent and in the same manner as the old or former homestead was exempt.

Source: SL 1874-5, ch 37, § 13; PolC 1877, ch 38, § 13; CL 1887, § 2461; RPolC 1903, § 3229; RC 1919, § 464; SDC 1939, § 51.1714; SL 1961, ch 263.

43-31-12. Disagreement as to extent of homestead--Determination by circuit court.

When a disagreement takes place between the owner and any person adversely interested, as to whether any land or buildings are properly a part of the homestead, it shall be competent for the circuit court in any proper case to determine such question and all questions relating thereto.

Source: SL 1874-5, ch 37, § 14; PolC 1877, ch 38, § 14; CL 1887, § 2462; RPolC 1903, § 3230; RC 1919, § 465; SDC 1939, § 51.1715.

43-31-13. Possession and occupancy of homestead--Surviving spouse--Minor children.

Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead until it is otherwise disposed of according to law; and upon the death of both husband and wife the children may continue to possess and occupy the whole homestead until the youngest child becomes of age.

Source: SL 1874-5, ch 37, § 15; PolC 1877, ch 38, § 15; CL 1887, § 2463; RPolC 1903, § 3231; RC 1919, § 466; SDC 1939, § 51.1716.

43-31-13.1. Owner's absence pursuant to protection order not waiver or abandonment of owner's interest.

If an owner is required to leave a homestead pursuant to a protection order obtained by the owner's spouse or to otherwise preserve peace in the home, the owner's absence from the homestead may not be considered a waiver or abandonment of the owner's interest in the homestead, unless there is evidence to the contrary.

Source: SL 2015, ch 223, § 3.

43-31-14. Family defined.

A widow or widower, though without children, while continuing to occupy the homestead used as such at the time of the death of the husband or wife, or any family, whether consisting of one or more persons in actual occupancy of a homestead as defined in this code, shall be deemed and held to be a family within the meaning of the laws of this state relating to homesteads.

Source: SL 1874-5, ch 37, § 2; PolC 1877, ch 38, §§ 2, 19; CL 1887, §§ 2450, 2467; RPolC 1903, §§ 3216, 3235; RC 1919, § 450; SDC 1939, § 51.1702.

43-31-15. Descent of homestead--Exemption from debts of owner--Exception.

Such homestead shall descend according to the law of succession as provided by Title 29A, unless otherwise directed or disposed of by will, and shall be held exempt from any antecedent debt of the parent, and if it descends to the issue of either husband or wife it shall be held by such issue exempt from debts of such husband or wife, except as may be otherwise provided by law.

Source: SL 1874-5, ch 37, § 16; PolC 1877, ch 38, § 16; CL 1887, § 2464; RPolC 1903, § 3232; RC 1919, § 467; SL 1935, ch 129; SDC 1939, § 51.1717.

43-31-16. Sale of homestead for payment of debts where no husband or wife surviving, and no issue.

If there be no husband or wife surviving, and no issue, the homestead shall be liable to be sold for the payment of any debts to which it might at that time be subjected if it had never been held as a homestead.

Source: SL 1874-5, ch 37, § 17; PolC 1877, ch 38, § 17; CL 1887, § 2465; RPolC 1903, § 3233; RC 1919, § 468; SDC 1939, § 51.1717.

43-31-17. Execution by husband and wife necessary for conveyance or encumbrance--Exception for prisoner of war or missing in action.

A conveyance or encumbrance of a homestead by its owner, if married and both husband and wife are residents of this state, is valid if both husband and wife concur in and sign or execute such conveyance or encumbrance either by joint instrument or by separate instruments. However, for the sole purpose of a spouse of a person in the armed forces making application for a home loan under 38 U.S.C. 1701, et seq., the signature of the spouse alone is sufficient to convey or encumber the homestead if the person in the armed forces is officially declared to be: missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign government or power.

Source: SL 1874-5, ch 51, § 3; PolC 1877, ch 38, § 3; CL 1887, § 2451; SL 1891, ch 77, § 1; RPolC 1903, §§ 3217, 3219; RC 1919, § 451; SL 1921, ch 255; SDC 1939, § 51.1703; SL 1972, ch 234; SL 1983, ch 13, § 24.

43-31-18. Application by spouse of protected person for conveyance or encumbrance by conservator.

If the spouse of a protected person is the owner of a homestead, such spouse may make application to the circuit court for any county where such homestead, or any part thereof, is located for an order directing the conservator of such protected person to join with such spouse in a conveyance or encumbrance of such homestead.

Source: SDC 1939, § 51.1704; SL 1972, ch 233, § 7; SL 1993, ch 213, § 237.

43-31-19. Application for order requiring guardian of mentally ill or incompetent spouse to join in conveyance or mortgage of homestead--Verification--Contents.

An application for the order provided for in § 43-31-18 must be duly verified and must state fully the facts on which the application is based.

Source: SDC 1939, § 51.1705.

43-31-20. Time and place for hearing application for order requiring guardian of mentally ill or incompetent spouse to join in conveyance or mortgage of homestead--Order fixing.

Upon such application being filed the court must make an order fixing a time and place for hearing, which time must be at least twenty days from the filing of the application.

Source: SDC 1939, § 51.1705.

43-31-21. Service of application and order for conservator of incapacitated spouse to join in conveyance or mortgage of homestead.

Service of such application and order shall be made at least ten days prior to the time fixed for such hearing and shall be made in the same manner as service of a summons in a civil action and shall be made upon the person alleged to be incapacitated, in any case where there has been no appointment of a conservator. If there has been such an appointment, then such service shall be upon the conservator.

Source: SDC 1939, § 51.1705; SL 1993, ch 213, § 238.

43-31-22. Appointment of guardian ad litem on whom service of application and order may be made to require incapacitated spouse to join in conveyance or mortgage of homestead.

If there has been an adjudication of incapacity but no such conservator is acting, the court shall appoint a guardian ad litem on whom such service shall be made, and the guardian ad litem shall represent and protect throughout the proceedings the rights of the person adjudged to be incapacitated.

Source: SDC 1939, § 51.1705; SL 1993, ch 213, § 239.

43-31-23. Order of court on application to require guardian of mentally ill or incompetent spouse to join in conveyance or mortgage of homestead--Findings of fact and conclusions of law.

At the conclusion of such hearing, the court must make findings of fact and conclusions of law as the basis of such order as may be entered.

Source: SDC 1939, § 51.1705.

43-31-24. Court determination as to incapacity--Order to conservator to join in conveyance or encumbrance.

If the court determines that such incapacitated person has been in an incapacitated condition for at least three years, or that such condition is incurable, it may make an order directing the conservator to join in such conveyance or encumbrance with the same effect as if such incapacitated person had, while competent, joined therein.

Source: SDC 1939, § 51.1704; SL 1972, ch 233, § 8; SL 1993, ch 213, § 240.

43-31-25. Appointment of conservator to join in conveyance or encumbrance for incapacitated spouse--No bond--Termination of conservatorship.

If there is no conservator of such incapacitated person, such application shall be deemed to include an application for appointment of such conservator, and if the application is granted, the order shall include an appointment of such conservator and if such incapacitated person has no property other than such homestead right, no bond may be required of such conservator, and the conservator's duties shall be deemed terminated and the conservatorship closed upon the conveyance or encumbrance being executed.

Source: SDC 1939, § 51.1704; SL 1972, ch 233, § 9; SL 1993, ch 213, § 241.

43-31-26. Recording of certified copy of order requiring guardian of mentally ill or incompetent spouse to join in conveyance or mortgage of homestead.

A duly certified copy of such order shall be recorded in the office of the register of deeds of the county where such homestead, or any part thereof, is located.

Source: SDC 1939, § 51.1704.

43-31-27. Devise or bequest of homestead subject to rights of surviving spouse.

Subject to the rights of the surviving husband or wife as declared by law, the homestead, if consisting of real property, may be devised like other real property of the testator, or if a mobile home may be bequeathed like other personal property of the testator.

Source: SL 1874-5, ch 37, § 18; PolC 1877, ch 38, § 18; CL 1887, § 2466; RPolC 1903, § 3234; RC 1919, § 469; SDC 1939, § 51.1718; SL 1972, ch 233, § 10.