South Dakota Wrongful Death Laws


Pursuant to the statutes of South Dakota, whenever the death or injury of a person, including an unborn child, shall be caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereto, if death had not ensued, then and in every such case, the corporation which, or the person who, would have been liable if death had not ensued, or the personal representative of the estate of such person as such personal representative, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.  When the action is against such personal representative, the damages recovered shall be a valid claim against the estate of such deceased person.  However, an action under this section involving an unborn child shall be for the exclusive benefit of the mother or the lawfully married parents of the unborn child[i].

Actions for wrongful death or personal injury shall survive the death of the wrongdoer whether or not the death of the wrongdoer occurred before or after the death or injury of the injured person[ii].  Every action for wrongful death shall be commenced within three years after the death of such deceased person[iii].  Whenever the death of a citizen of the state has been caused by a wrongful act, neglect, or default in another state, territory, or foreign country for which a right to maintain an action and recover damages in respect thereto is given by a statute of such other state, territory, or foreign country, such right of action may be enforced in the state within the time prescribed for the commencement of such action, by the statute of such other state, territory, or foreign country[iv].

Every action for wrongful death shall be for the exclusive benefit of the wife or husband and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused.  It shall be brought in the name of the personal representative or regular special administrator of the deceased person[v].  Such personal representative may at any time before or after the commencement of a suit for wrongful death settle with the defendant the amount to be paid to him/her as damages for the wrongful death of the decedent.  If such personal representative was appointed in the state and settlement is made before the commencement of a suit, such settlement must have the approval of the court of the representative’s appointment.  If a settlement is made at any time after the commencement of suit, whether before or after judgment therein, such a settlement must have the consent and approval of the court wherein the action is pending; provided that if the personal representative was appointed in the state s/he may make such settlement upon the consent and approval of either the court wherein the action is pending or the court of his/her appointment.  If all the statutory beneficiaries are of full age, competent, and consent in writing to the proposed settlement, the same may be made at any time, before or after suit, without the consent of either court[vi].

In every action for wrongful death, the jury may give such damages as they may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action shall be brought[vii].  The amount received by such personal representative, whether by settlement or otherwise, shall be apportioned among the beneficiaries, unless adjusted between themselves, by the court making the appointment, in such manner as shall be fair and equitable, having reference to the age and condition of such beneficiaries[viii].

[i] S.D. Codified Laws § 21-5-1

[ii] S.D. Codified Laws § 21-5-2

[iii] S.D. Codified Laws § 21-5-3

[iv] S.D. Codified Laws § 21-5-4

[v] S.D. Codified Laws § 21-5-5

[vi] S.D. Codified Laws § 21-5-6

[vii] S.D. Codified Laws § 21-5-7

[viii] S.D. Codified Laws § 21-5-8