CHAPTER 21-44
TERMINATION OF LIFE ESTATES
21-44-1 Definition of terms.
21-44-2 Recording death certificate--Prima facie evidence--Affidavit identifying property.
21-44-3 Proceeding for termination of life estate--Contents of verified petition.
21-44-4 Joinder of proceedings as to two or more life tenants.
21-44-5 Joinder of proceedings as to all property held by life tenant.
21-44-6 Life estates in personal property subject to termination--Joinder with proceedings as to real property.
21-44-7 Lis pendens notice required if property in another county affected.
21-44-8 Order fixing time and place for hearing on petition--Contents.
21-44-9 Publication of notice of hearing--Mail notice to parties--Other notice ordered by court.
21-44-10 Repealed
21-44-11 Validation of prior inheritance tax determinations in circuit court.
21-44-12 Persons permitted to appear at hearing on termination of estate.
21-44-13 Procedure on contested petitions.
21-44-14 Inquiry and proof required on uncontested petition.
21-44-15 Clear and convincing proof required--Adjournment to secure additional evidence--Affidavits to establish death of life tenant.
21-44-16 Statement or affidavit establishing death of person in military service.
21-44-17 Presumption of death after seven years' absence.
21-44-18 Denial of petition if proof insufficient--Order to proceed in quiet title action.
21-44-19 Judgment finding life tenant deceased and terminating life estate--Effect of judgment.
21-44-20 Validation of prior proceedings as to personal property.
21-44-21 Validation of prior proceedings joining different claims as to personal property--Protection of vested rights.
21-44-22 Validation of prior proceedings where notice or allegations were insufficient.
21-44-23 Recording of judgment terminating estate--Prima facie evidence.
21-44-24 Action to set aside judgment terminating estate--Bona fide purchaser or encumbrancer protected.
21-44-25 Prospective and retrospective application of chapter.
21-44-26 Remedy not exclusive.
21-44-27 Spousal joint tenancy termination.
21-44-1. Definition of terms.
Terms used in this chapter, unless the context otherwise plainly requires, shall mean:
(1) \"Life tenant,\" any person who under the terms of any will, deed, grant, mortgage, assignment, or other instrument holds during his lifetime any right, title, or interest in, or lien or encumbrance upon, real estate or personal property within this state, which right, title, or interest or lien or encumbrance, by the terms of such will, deed, grant, mortgage, assignment, or other instrument, terminates upon and by reason of his death, and by such terms thereupon passes to some other designated person or persons; and including an interest as a joint tenant or joint owner as distinguished from a tenant in common or owner in common of such real estate, or such lien or encumbrance;
(2) \"Remainderman,\" any person or persons to whom by such terms of such will, deed, grant, mortgage, assignment, or other instrument, such right, title, or interest or lien or encumbrance, or any part or portion thereof, passes upon the death of the life tenant, and including a surviving joint tenant or surviving joint owner, and the successor in interest of any of them.
Source: Supreme Court Rule 572, 1939; SDC 1939 & Supp 1960, § 37.1201.
21-44-2. Recording death certificate--Prima facie evidence--Affidavit identifying property.
In all cases of joint tenancy in lands or personal property, and in all cases where any estate, title or interest in, or lien upon, lands or personal property has been or may be created, which estate, title, interest, or lien was or is to continue only during the life of any person named or described in the instrument by which such estate, title, interest or lien was created, a copy of the record of the death of any such joint tenant or of the person upon whose life such estate, title, interest, or lien was or is limited, duly certified by any officer who is required by the laws of the state or county in which such record is made, to keep a record of the death of persons occurring within the jurisdiction of such officer, may be recorded in the office of the register of deeds of the county in which such lands are situated or in the proper office for filing as to such personal property. The record of such certified copy is prima facie evidence of the death of such person and the termination of such joint tenancy and of all such estate, title, interest, and lien as was or is limited upon the life of such person. In order to identify the property affected by the death of such person, the person causing the certificate to be recorded shall attach thereon an affidavit setting out the legal descriptions of the property involved.
This section shall not be treated or construed as exclusive of any other remedy authorized by law or rule of court but as cumulative to such other remedy.
Source: SL 1957, ch 198; SDC Supp 1960, § 37.1214; SL 2001, ch 109, § 1; SL 2021, ch 34, § 3.
21-44-3. Proceeding for termination of life estate--Contents of verified petition.
Any person who claims that a life tenant is deceased may file in the circuit court for the county in which is situated the real estate or personal property involved or some portion thereof, his duly verified petition setting forth:
(1) A description of the real estate or personal property involved;
(2) A complete identification of the instrument which is the basis of the proceeding, and a statement of the book and place of record thereof within this state;
(3) The fact as to the date and place of death of the life tenant;
(4) The last known post office address of the life tenant;
(5) The names and post office addresses, so far as known to the petitioner, of the surviving heirs or heirs at law of the life tenant;
(6) A statement of the names and addresses of the remaindermen entitled to such property on the expiration of the life estate.
Source: Supreme Court Rule 573, 1939; SDC 1939, § 37.1203; Supreme Court Rule adopted August 10, 1943.
21-44-4. Joinder of proceedings as to two or more life tenants.
In any proceeding under the provisions of this chapter, or any other statute or rule of court pertaining to the termination of life estates as defined in § 21-44-1, where it is claimed that two or more life tenants are deceased, each of whom had an interest in the property involved, or part thereof, all such life tenancies may be included in one proceeding.
Source: Supreme Court Order No. 4, 1957; SDC Supp 1960, § 37.1213 (1).
21-44-5. Joinder of proceedings as to all property held by life tenant.
In any proceeding under the provisions of this chapter, or any other statute or rule of court pertaining to the termination of life estates as defined in § 21-44-1, all property in which an interest was held by any life tenant may be included in one proceeding notwithstanding the fact that the remaindermen may be different, in whole or in part, as to any such property.
Source: Supreme Court Order No. 4, 1957; SDC Supp 1960, § 37.1213 (2).
21-44-6. Life estates in personal property subject to termination--Joinder with proceedings as to real property.
In any proceeding under the provisions of this chapter, or any other statute or rule of court pertaining to the termination of life estates as defined in § 21-44-1, the right of a life tenant in personal property may be terminated either as the sole purpose of the proceeding or in connection with the termination of an interest in real estate, for which purpose the designation of real property in any such statute or rule of court shall be deemed to include personal property, and reference therein to recording data or recording as applying to real property shall be construed to include filing data or filing as may be applicable to personal property.
Source: Supreme Court Order No. 4, 1957; SDC Supp 1960, § 37.1213 (3).
21-44-7. Lis pendens notice required if property in another county affected.
If a petition filed pursuant to § 21-44-3 describes real estate or personal property situated in any county other than that in which such petition is filed, immediately after the filing of such petition, there shall be recorded in the office of the register of deeds of such other county or counties or in the proper office for filing with respect to such personal property a notice of the pendency of the proceeding, containing the title and the object of the proceeding and a description of the property to be affected thereby.
Source: Supreme Court Rule adopted August 10, 1943; Supreme Court Rule adopted April 19, 1948; SDC Supp 1960, § 37.1205.
21-44-8. Order fixing time and place for hearing on petition--Contents.
Upon the filing of the petition, the court shall enter an order which shall set forth the name of the petitioner, the name of the life tenant, a description of the real estate or personal property involved, the date of the death of the life tenant, as set forth in the petition, and the nature of the right, title, or interest, or lien or encumbrance as to which the petition prays the termination, and the time and place for hearing.
Source: Supreme Court Rule 574, 1939; SDC 1939, § 37.1204; Supreme Court Rule, Order No. 3, 1954; SL 1982, ch 174, § 3.
21-44-9. Publication of notice of hearing--Mail notice to parties--Other notice ordered by court.
Notice of the hearing shall be given by publication of the order for hearing in a legal newspaper of the county in which such petition is filed, once a week for three successive weeks prior to the hearing, and by mailing by regular mail true copies of the order addressed to the life tenant at the life tenant's last known post office address, to the Department of Social Services in Pierre, South Dakota, to the remaindermen entitled to the property on the expiration of the life estate, and to the heirs or heirs at law of the life tenant at their respective post office addresses as set forth in the petition, at least fourteen days prior to the date of the hearing. The court may, in the order for hearing, require any other or further notice to be given which the court deems reasonable. The department need not be specifically named in the notice and may file a claim for any indebtedness owed pursuant to §§ 28-6-23 to 28-6-27, inclusive, at or before the hearing.
Source: SDC 1939, § 37.1205; Supreme Court Rule adopted August 10, 1943; Supreme Court Rule adopted April 19, 1948; SL 1982, ch 174, § 4; SL 1994, ch 229, § 11.
21-44-10. Repealed.
Source: SDC 1939, § 37.1212 as enacted by SL 1953, ch 207, § 1; SL 1964, ch 214, § 3; SL 1982, ch 174, § 5; SL 1986, ch 176; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2021, ch 34, § 4.
21-44-11. Validation of prior inheritance tax determinations in circuit court.
All proceedings had prior to July 1, 1953, in any of the circuit courts of this state for the termination of a life estate, or life estates, wherein
(1) An inheritance tax report has been filed with the Department of Revenue of the State of South Dakota; and
(2) His receipt therefor has been issued; and
(3) A stipulation has been made by him as to whether or not any inheritance tax is due the State of South Dakota, and if so, the amount thereof, upon which the court has issued and entered its order declaring whether or not any inheritance tax is due the state, and if so the amount thereof; are hereby legalized, cured and validated; and all such proceedings are hereby declared to be in all respects of like force and effect as though the determination of such inheritance tax was had in the county court.
Source: SL 1953, ch 207, § 2; SDC Supp 1960, § 65.0345; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
21-44-12. Persons permitted to appear at hearing on termination of estate.
Upon the hearing ordered pursuant to § 21-44-8 any person interested may appear and be heard on the question of whether the relief prayed for in the petition is to be granted.
Source: Supreme Court Rule 576, 1939; SDC 1939, § 37.1206; Supreme Court Rule adopted August 10, 1943.
21-44-13. Procedure on contested petitions.
If the petition is contested, the procedure shall be the same as upon other trials to the court, and the court must make findings of fact and conclusions of law unless the same are waived by any method of waiver provided by law.
Source: SDC 1939 & Supp 1960, § 37.1207.
21-44-14. Inquiry and proof required on uncontested petition.
Whether or not such petition is opposed, the court must inquire into the matters set forth and shall grant the prayer of such petition only if satisfied that the life tenant is in fact deceased, and that his right, title, or interest in, or lien or encumbrance upon, the real estate or personal property involved, has terminated by reason of his death.
Source: Supreme Court Rule 576, 1939; SDC 1939, § 37.1206; Supreme Court Rule adopted August 10, 1943.
21-44-15. Clear and convincing proof required--Adjournment to secure additional evidence--Affidavits to establish death of life tenant.
Clear and convincing proof of the identity and death of the life tenant must be submitted. If the court is not satisfied with the proof offered at the hearing whether it be contested or not, the court may adjourn such hearing to a convenient future date, and require the petitioner at such adjourned hearing to produce a certified copy of the death certificate of the life tenant, if he died within a state where such certificates are a matter of public record, or in lieu thereof, the affidavits of two or more persons, that they knew the life tenant in his lifetime, and after his death saw his body.
If such affidavits are made outside South Dakota, they must be accompanied by a statement of an officer of the state or country where such affidavits are made, that he personally knows affiants, that they are persons having a good reputation for truth and veracity, and as law abiding citizens.
Source: Supreme Court Rule adopted August 10, 1943; SDC Supp 1960, § 37.1206.
21-44-16. Statement or affidavit establishing death of person in military service.
If the life tenant was in the military service at the time of his death, the written statement of his commanding officer giving the facts of his death, signed by such commanding officer with his rank and organization, or the affidavit of one or more soldiers who knew the fact of his death, may be accepted in lieu of any of the proof required by § 21-44-15.
Source: Supreme Court Rule adopted August 10, 1943; SDC Supp 1960, § 37.1206.
21-44-17. Presumption of death after seven years' absence.
If any person upon whose life any estate or interest in property depends, remains without the United States or absents himself in the state or elsewhere for seven years together, such person must be accounted naturally dead in any action or special proceeding concerning any such property in which his death shall come in question unless sufficient proof be made in such case that he is living.
Source: CCivP 1877, § 498; CL 1887, § 5312; RCCivP 1903, § 537; RC 1919, § 2729; SDC 1939, § 36.0205; SL 1957, ch 191.
21-44-18. Denial of petition if proof insufficient--Order to proceed in quiet title action.
If the court is not satisfied with the proof finally offered, the court may deny the petition or order the petitioner to proceed under chapter 21-41.
Source: Supreme Court Rule adopted August 10, 1943; SDC Supp 1960, § 37.1206.
21-44-19. Judgment finding life tenant deceased and terminating life estate--Effect of judgment.
Upon the completion of the hearing and compliance with the procedure and proof required by this chapter, the court may make an order or judgment, finding as a fact upon the question of the death of the life tenant and adjudicating upon the termination of the life tenant's right, title, interest, lien, or claim upon the property involved. The order or judgment of the court shall be of the same force and effect and finality of other judgments of the circuit court. If the court shall find or adjudge as a fact that the life tenant is deceased, such adjudication terminates all right, title, interest, lien, or claim of such life tenant and those claiming under him adversely to the remainderman or his successor in interest, unless the same is asserted as provided in § 21-44-24.
Source: SDC 1939 & Supp 1960, § 37.1207.
21-44-20. Validation of prior proceedings as to personal property.
All proceedings had prior to July 1, 1957, for the termination of life estates in personal property pursuant to the provisions of this chapter, where such proceedings evidence a compliance with such chapter in every respect except that where real property is indicated therein reference is made to such personal property, or to both real and personal property upon a consolidation of proceedings, are hereby legalized, cured and validated, and all such life estates are deemed to be and are terminated.
Source: SL 1957, ch 504; SDC Supp 1960, § 65.0336.
21-44-21. Validation of prior proceedings joining different claims as to personal property--Protection of vested rights.
All proceedings for termination of life estate conducted prior to July 1, 1957, in which personal property has been involved, in which two or more life tenants were named, or in which the remaindermen were not identical as to all property involved, are hereby legalized, cured, and validated, and all such proceedings are hereby declared to be in all respects of like force and effect as if expressly authorized by the law in effect at the time such proceeding was conducted.
If any person had any vested right in any property, or other rights of any kind, by reason of any of the matters referred to in paragraph one hereof, if no action or proceeding to enforce such right was begun prior to July 1, 1958, such rights shall be forever barred; and no action or proceeding so brought is of any force or effect, or maintainable in any court of this state, unless, prior to July 1, 1958, there was recorded in the office of the register of deeds of the county in which the property affected is situated, a notice of the pendency of such action, in accordance with the provisions of chapter 15-10.
Source: SL 1957, ch 503; SDC Supp 1960, § 65.0335.
21-44-22. Validation of prior proceedings where notice or allegations were insufficient.
In all instances where an order terminating a life estate of any person in and to any real property has been made by the circuit court as provided by this chapter, any and all such orders for hearing and all orders and decrees made and entered in any such proceedings in the circuit court aforesaid, where the hearing has been had at the time and place as specified in the order for hearing, notwithstanding the fact that less than three weeks intervened between the date of the first publication of notice and the date of hearing, and notwithstanding any failure in any or either of said proceedings to state the date of the death of the life tenant are hereby legalized and validated.
Source: SL 1953, ch 495; SL 1957, ch 502; SDC Supp 1960, § 65.0334.
21-44-23. Recording of judgment terminating estate--Prima facie evidence.
A certified copy of the order or judgment of the circuit court must be filed in the office of the register of deeds of the county wherein the real estate involved, or any portion sought to be affected by the judgment is situated. Thirty days after such recording the same shall constitute prima facie evidence of the fact of the death of the life tenant and of all other matters set forth in such order.
Source: SDC 1939 & Supp 1960, § 37.1208.
21-44-24. Action to set aside judgment terminating estate--Bona fide purchaser or encumbrancer protected.
Any person interested who questions the fact of such death may at any time commence an action in the circuit court to set aside the judgment or order of the court and file for record in the office of such register of deeds, a notice subscribed and verified by him, giving the description of the real estate or personal property involved, and the basis and reasons as to his raising such question as to the fact of death, but no purchaser or encumbrancer of such real estate or personal property, or any part thereof, in good faith and for value, more than thirty days after the recording of the certified copy of the order or judgment shall be subject to any claim growing out of the rights of the life tenant.
Source: SDC 1939 & Supp 1960, § 37.1208.
21-44-25. Prospective and retrospective application of chapter.
This chapter shall apply regardless of whether the death of the life tenant is claimed to have occurred prior or subsequent to the enactment of this code.
Source: SDC 1939 & Supp 1960, § 37.1202.
21-44-26. Remedy not exclusive.
The remedy provided by this chapter is not exclusive, and any remainderman or his successor in interest may resort to any other remedy provided by this code, for the establishment of any rights growing out of the claimed death of the life tenant.
Source: SDC 1939 & Supp 1960, § 37.1209.
21-44-27. Spousal joint tenancy termination.
If the spouse of a decedent is the sole surviving joint tenant in real property, any interested person may terminate the joint tenancy by furnishing the register of deeds of the county where the property is located with an affidavit setting forth the following:
(1) The name and date of death of the deceased joint tenant;
(2) The legal description of the real property held in joint tenancy;
(3) The name of the surviving spouse of the deceased joint tenant;
(4) That the surviving spouse of the deceased joint tenant is the sole surviving joint tenant in the real property.
The affidavit shall be accompanied by a certified copy of the death certificate of the deceased joint tenant.
Source: SL 1995, ch 119; SL 1996, ch 149; SL 1999, ch 114, § 1; SL 2021, ch 34, § 5.