South Dakota

South Dakota is not a state which allows you to select the set of Federal Bankruptcy Exemptions. You must use South Dakota’s set of exemptions.


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 in this code, except that a creditor or lien holder of a mobile home classified as a homestead under  43-31-2 prior to January 1, 1973 shall not be cut off or subject to a homestead exemption. In addition, the homestead of a person seventy years of age or older and the unremarried surviving spouse of such person, so long as it continues to possess the character of a homestead, is exempt from sale for taxes.


A homestead:

(1) As defined and limited in chapter 43-31, is absolutely exempt; or

(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 thirty thousand dollars, is absolutely exempt for a period of one year after the receipt of such proceeds by the owner. Such exemption shall not be limited to thirty 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.


The property mentioned in this section is absolutely exempt from all such process, levy, or sale, except as otherwise provided by law:

(1) All family pictures;

(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.


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.


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, executor, or administrator, 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 administrator or executor 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.


In accordance with the provision of  522(b) of the Bankruptcy Code of 1978 (11 U.S.C.  522(b)), residents of this state are not entitled to the federal exemptions provided in  522(d) of the Bankruptcy Code of 1978 (11 U.S.C.  522(d)), exemptions which this state specifically does not authorize. Nothing herein affects the exemptions given to residents of this state by the state Constitution and the South Dakota statutes.


Any person shall have the right to select and designate a total of two hundred fifty thousand 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.


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.


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.


Section 58-12-6 does not apply to amounts paid as premium on any such annuity with the intent to defraud creditors, with interest thereon, and of which the creditor has given the insurer written notice at its home office prior to the making of the payments to the annuitant out of which the creditor seeks to recover. Any such notice shall specify the amount claimed or such facts as will enable the insurer to ascertain such amount, and shall set forth such facts as will enable the insurer to ascertain the annuity contract, the annuitant and the payment sought to be avoided on the ground of fraud.


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.


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.

3-12-115. Contributions and benefits exempt from taxation and process

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.


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.


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.


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; such rights to benefits are exempt from levy, execution, attachment, or any other remedy provided for the collection of debt; and benefits received by any individual, so long as they 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, his 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. 97-35 — 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 must 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:

(1) The amount determined by agreement between the individual and the department of labor; or

(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.

24-8-10. Earnings not exempt from seizure

The earnings of inmates under this chapter are not subject to garnishment, attachment, or execution either in the hands of the employer or an agent authorized to hold or transmit such moneys.

15-20-12. Order applying judgment debtor’s property to satisfaction of judgment

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.


The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment may not exceed the lesser of:

(1) Twenty percent of disposable earnings for that week;

(2) The amount by which disposable earnings for that week exceed forty times the federal minimum hourly wage prescribed by section 6(a) (1) of the Fair Labor Standards Act of 1938, as amended and in effect on September 1, 1997, Pub. L. 95-151; 91 Stat. 1245; 29 U.S.C. 206, or any equivalent multiple thereof prescribed by regulation by the secretary of labor in case of earnings for any pay period other than a week, in effect at the time the earnings are payable less twenty-five dollars per week for each dependent family member residing with the garnishment debtor other than the garnishment debtor himself or herself.

The restrictions of subdivisions (1) and (2) do not apply in the case of any order of any court for the support of any person or any order of any court of bankruptcy under Title 11 of the United States Code.

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