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Who Has the Right to Make Funeral Decisions in South Dakota?

In South Dakota, who decides what happens to a person’s body after death is set by S.D. Codified Laws §§ 34-26-74 to 34-26-79. If the person did not name someone in advance, the right usually falls first to the spouse, then passes down a fixed order set by the law.

This page sets out that order, how ties are settled, when someone loses the right, and what happens if the family disagrees. It is general information, not legal advice.

Who decides, in order, under South Dakota law

  1. Person designated by notarized affidavit
  2. DD Form 93 designee (active duty)
  3. Spouse
  4. Children (majority)
  5. Parents
  6. Siblings (majority)
  7. Grandparents (majority)
  8. Personal representative named in the will
  9. Guardian at time of death
  10. Next of kin by descent (any one)
  11. Public official
  12. Any other willing person, including the funeral director

The right belongs to the first person or group on the list who is available, willing and able to act. If they decline or cannot be reached, it passes to the next.

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Can you name someone in advance in South Dakota?

Yes. The document the law requires: Notarized affidavit designating a person (form in § 34-26-77); DD Form 93. A valid designation comes before a spouse or any relative.

When several people share the right

Majority; fewer suffice if they notified the others and know of no majority opposition. Funeral homes may follow the first class member to act absent written objection.

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When someone loses the right

Forfeited if charged with first- or second-degree murder or voluntary manslaughter in the death; not acting within 2 days of notice or 3 days of the funeral home taking custody; a spouse with a divorce pending; or court-found estrangement (§ 34-26-76).

If the family disagrees

Petition the court in the county where the decedent lived (§ 34-26-78).

South Dakota adopted this law in 2022. Deadlines are very short: two days after notice.

Death certificates and local help in South Dakota

Certified death certificates come from the vital records office where the death happened: South Dakota vital records (CDC directory). Our guide to getting a death certificate in South Dakota covers fees and who can order.

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