South Dakota Bankruptcy Laws : South Dakota State Exemptions
Complete state of South Dakota bankruptcy exemptions laws which protect a debtor’s property when personal bankruptcy is filed.
Homestead exempt from judicial sale, judgment lien, and mesne or final process–Mobile home exemption Senior citizen’s homestead exemption from tax sale limited. The homestead of every family, resident in this state, as hereinafter defined, 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.
Homestead limited to house or mobile home and appurtenant buildings–Business place–Minimum size of mobile home. The homestead must embrace the house used as a home by the owner thereof, being either, real property or a mobile home as hereinafter defined, and if he or she has two or more houses or mobile homes thus used at different times and places, such owner may select which he or she will retain as a homestead.
It must not embrace more than one dwelling house or any other buildings except such as are properly appurtenant to the homestead as such; but a shop, store, or other building situated on real property and really used or occupied by the owner in the prosecution of his own ordinary business may be deemed appurtenant to such homestead.
Mobile homes shall include any vehicle without motive power which can provide adequate, comfortable, all season quarters for the purpose of making a residence thereof and which vehicle is larger than two hundred forty square feet, measuring at the base thereof. Such mobile home must be registered in South Dakota at least six months prior to the claim of exemption.
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.
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.
Homestead absolutely exempt–Extent of exemption when homestead sold. A homestead:
(2) In the event such homestead is sold under the provisions of chapter 21-19, or is sold by the owner voluntarily, the proceeds of such sale, not exceeding the sum of sixty thousand dollars, is absolutely exempt for a period of one year after the receipt of such proceeds by the owner. Such exemption shall be limited to one hundred seventy thousand dollars for a homestead of a person seventy years of age or older or the unremarried surviving spouse of such person so long as it continues to possess the character of a homestead.
Court order applying property to satisfaction of judgment–Restriction on application of wages. The judge may order any property of the judgment debtor not exempt from execution in the hands either of himself or any other person or due the judgment debtor to be applied to the satisfaction of the judgment; except that the earnings of the debtor for his personal services at any time within sixty days next preceding the order cannot be so applied when it is made to appear by the debtor’s affidavit or otherwise that such earnings are necessary for the use of a family supported wholly or partly by his labor.
Property absolutely exempt–Books and pictures–Seat in house of worship–Wearing apparel–Necessary provisions and fuel for one year. The property mentioned in this section is absolutely exempt from all such process, levy, or sale, except as otherwise provided by law:
(2) A pew or other sitting in any house of worship;
(3) A lot or lots in any burial ground;
(4) The family Bible and all schoolbooks used by the family, and all other books used as a part of the family library, not exceeding in value two hundred dollars;
(5) All wearing apparel and clothing of the debtor and his family;
(6) The provisions for the debtor and his family necessary for one year’s supply, either provided or growing, or both, and fuel necessary for one year;
(7) All property in this state of the judgment debtor if the judgment is in favor of any state for failure to pay that state’s income tax on benefits received from a pension or other retirement plan while the judgment debtor was a resident of this state.
Additional property exemptions–Selection and appraisal. In addition to the property provided for in §§ 43-45-2 and 43-45-3, the debtor, if the head of a family, may, personally, or by agent or attorney, select from all other of the debtor’s personal property, not absolutely exempt, goods, chattels, merchandise, money, or other personal property not to exceed in the aggregate six thousand dollars in value; and, if not the head of a family, property as aforesaid of the value of four thousand dollars, which is also exempt, and which shall be chosen and appraised as provided by law.
Exemption of contributions and benefits from taxation and process. (Public Employees) The rights of a person to a benefit, return of accumulated contributions, the benefit itself, any optional benefits and any other right accrued or accruing under the provisions of this chapter and all moneys belonging to the system are hereby exempt from any state, county, municipal, or other local tax and may not be subject to execution, garnishment, attachment, operation of bankruptcy or insolvency laws or any other process of law whatsoever and shall be unassignable, except as required under applicable law, including any qualified domestic relations order as defined in § 414(p) of the Internal Revenue Code of 1954, as amended and in effect on January 1, 1985, or as is otherwise specifically provided in this chapter.
Benefits and contributions exempt from assignment and process. (City Employees) All annuities, pensions, retirement allowances, the accumulated contributions of any member, or any other benefit whatsoever accrued or accruing to any member or beneficiary shall be unassignable and shall not be subject to execution, attachment, garnishment, or any other process of law whatsoever, except as is specifically provided by this chapter.
Payment of compensation–Lump sum–Exception for protracted disability–Award not subject to process. An award of victims’ compensation under this chapter shall be paid in a lump sum. However, in a case involving death or protracted disability, an award may be paid in periodic payments. The department may pay any portion of an award directly to the provider of any service which is the basis for that portion of the award. An award is not subject to execution, attachment, garnishment, or other process. However, an award for compensation toward a related expense is not exempt from a claim by a creditor to the extent that the creditor provided products, services, or accommodations, the costs of which are recognized and included in the award.
Assistance not transferable–Assistance not subject to legal process–Exception. (Public Assistance) Assistance granted under this chapter is not transferable or assignable at law or in equity. No money paid or assistance granted under this chapter is subject to execution, levy, attachment, garnishment, or other legal process, except as may be expressly authorized by law for purposes of recovery or recoupment by the department, or to the operation of any bankruptcy or insolvency law.
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.
Proceeds of life insurance payable to estate of decedent–Rights of surviving spouse or minor children–Amount of exemption–Payment discharging insurer from liability. The proceeds of any insurance upon the life of any person residing in this state, at the time of his death and who leaves a surviving widow, husband, or minor child or children, payable upon his death to his estate or personal representative, and not assigned to any other person, shall, to any amount not exceeding ten thousand dollars, inure to the use of such surviving widow, husband, minor child or children; and such amount shall not be subject to the payment of any debt of such decedent, or of such surviving widow, husband, minor child or children. Whenever the proceeds of such insurance become payable and the insurer makes payment thereof to the personal representative of the estate of such person, such payment shall fully discharge the insurer from all claims under the policy or contract, and such insurer need not follow the distribution of such payment.
Exemption from process for certain retirement benefits–Right of state to collect. Any person has the right to select and designate a total of one million dollars and the income and distributions therefrom from the employee’s benefit plans as exempt from execution, attachment, garnishment, seizure, or taking by any legal process. This exemption is subject to the right of the State of South Dakota and its political subdivisions to collect any amounts owed to them. This section permits benefits under such plan or arrangement to be payable to a spouse, former spouse, child, or other dependent of a participant in such plan to the extent expressly provided for in a qualified domestic relations order as defined in 29 U.S.C. § 1056(d) or in § 401(a)(13) of the Internal Revenue Code.
Life and health insurance–Exemption of benefits and proceeds from execution. The proceeds of a policy of life or health insurance to the total amount of twenty thousand dollars only, in the absence of any agreement or assignment to the contrary, shall inure to the separate use of the insured, his surviving spouse, or children, as the case may be, independently of the creditors of any of them and shall not be subject to the payment of the debts of any one or all of such persons, notwithstanding that the proceeds may be payable directly to the insured or surviving spouse or children as the named beneficiary or beneficiaries or otherwise; and the proceeds of an endowment policy, payable to the insured on attaining a certain age, to the extent of twenty thousand dollars shall at all times be exempted from the debts of such spouse or children of the insured; and the avails of any life or health insurance or other sum of money not exceeding twenty thousand dollars made payable by any mutual aid or benevolent society to any member or beneficiary spouse or children or both shall likewise be exempt.
Exemption of annuity contract benefits, rights, privileges, and options from execution. The benefits, rights, privileges, and options which under any annuity contract heretofore or hereafter issued are due or prospectively due the annuitant, shall not be subject to execution nor shall the annuitant be compelled to exercise any such rights, powers, or options, nor shall creditors be allowed to interfere with or terminate the contract, except as provided by §§ 58-12-7 to 58-12-9, inclusive.
Maximum amount of annuity exemption–Excess subject to levy. The total exemption under § 58-12-6 of benefits presently due and payable to any annuitant periodically or at stated times under all annuity contracts under which he is an annuitant, shall not at any time exceed two hundred and fifty dollars per month for the length of time represented by such installments, and such periodic payments in excess of two hundred and fifty dollars per month shall be subject to levy in the manner provided by law and the rules of court.
Policy settlements by life insurer. Any life insurer shall have the power to hold under agreement the proceeds of any policy issued by it, upon such terms and restrictions as to revocation by the policyholder and control by beneficiaries, and with such exemptions from the claims of creditors of beneficiaries other than the policyholder as set forth in the policy or as agreed to in writing by the insurer and the policyholder. Upon maturity of a policy, in the event the policyholder has made no such agreement, the insurer shall have the power to hold the proceeds of the policy under an agreement with the beneficiaries. The insurer shall not be required to segregate the funds so held but may hold them as part of its general assets.
Money or other benefits not attachable for individual debts. No money or other benefit, charity, relief, or aid to be paid, provided, or rendered by any society, is liable to attachment, garnishment, or other process, or to be seized, taken, appropriated, or applied by any legal or equitable process or operation of law to pay any debt or liability of a member or beneficiary, or any other person who may have a right thereunder, either before or after payment by the society.
Assignment of benefits void–Exemption from process–Waiver of exemption void–Information furnished to Department of Social Services– Disclosure of obligations by applicant–Deductions–Reimbursement of costs. (Unemployment Compensation) Any assignment, pledge, or encumbrance of any right to benefits which are or may become due or payable under this title is void except as provided in this section. The rights to benefits are exempt from levy, execution, attachment, or any other remedy provided for the collection of debt. Any benefits received by any individual, so long as the benefits are not mingled with other funds of the recipient, are exempt from any remedy for the collection of all debts, except debts incurred for necessaries furnished to the individual, the individual’s spouse, or dependents during the time when the individual was unemployed. Any waiver not provided for in this section is void.
The secretary of the Department of Labor shall furnish information on individuals receiving unemployment insurance benefits to the Department of Social Services in accordance with section 303(e) of the Social Security Act as amended by section 2333(b) of P. L. 97-5–August 13, 1981. The secretary may also furnish this information in accordance with section 13 of the Food Stamp Act of 1977 as amended by section 1535 of P.L. 99-198. The Department of Social Services determines periodically whether any of these individuals receiving unemployment insurance owe child support obligations or an uncollected overissuance of food stamp coupons.
Each new applicant filing for unemployment insurance benefits shall disclose any obligation for child support payments in accordance with § 28-7-2, and may be required to disclose any obligation for uncollected overissuances (as defined in section 13(c)(1) of the Food Stamp Act of 1977) of food stamp coupons, to the Department of Labor at the time of filing. If an individual disclosing child support obligations is eligible for unemployment insurance benefits, the secretary shall notify the Department of Social Services.
The secretary shall deduct from an eligible individual’s unemployment insurance benefit payment and pay to the secretary of the Department of Social Services:
(2) The amount determined by agreement between the individual and the Department of Social Services; or
(3) The amount determined by the Department of Social Services through legal processes.
If an individual disclosing an uncollected overissuance of food stamp coupons is eligible for unemployment insurance benefits, the secretary may notify the Department of Social Services. The secretary may also deduct from an eligible individual’s unemployment insurance benefit payment, and pay to the secretary of the Department of Social Services, the amount determined by subdivisions (1) to (3), inclusive, of this section.
The secretary of the Department of Social Services shall reimburse the Department of Labor for administrative costs incurred by the Department of Labor attributable to child support payment obligations and food stamp overissuance obligations being enforced by the Department of Social Services.
Assignment of payments prohibited–Certain compensation exempt from claims of creditors. (Workers’ Compensation) No claim for compensation under this title is assignable, and all compensation and claims therefor are exempt from all claims of creditors except those for child and spousal support obligations.
Note: While this reference information is current as of August 2010, it may not reflect the most up-to-date exemption figures on official state of South Dakota bankruptcy court statutes.