SW Legal studies in Business

Property at Time of Death May Not Go into Estate

South Dakota high court held that the main assets of a person who died without a will passed to his wife by contract and by property law. The assets did not go to an estate subject to probate, so the state of South Dakota could not make a claim against the estate to recover costs of care prior to death.

Topic Wills, Estates, and Trusts
Key Words

Estate; Property; Cost of Care

C A S E   S U M M A R Y

Ernest Hammer was cared for at a state-owned nursing home before his death. Upon his death, having no will, his personal home passed to his wife, Mildred, as a joint tenant with right of survivorship. She also received the proceeds of his life insurance policy as she was named as beneficiary. Mildred died a few months after Ernest and her property passed to her daughter. Soon after her death, the state filed a claim against Ernest's estate for the $13,113 cost of his care at the state home prior to his death. The trial court held that Ernest did not have an estate against which a claim could be made. The state home appealed.


Affirmed. Ernest did not leave an estate to his wife, hence, the state home could not recover costs for his care from the estate of his wife. By law, the state could recover from his estate if he left an estate to his spouse. But Ernest did not leave, by a will, some portion of his estate to his wife. She took his share of their home by right of survivorship. His interest in the home ended at his death and Mildred took by right of survivorship, not as beneficiary of an estate. She took insurance proceeds under the terms of the insurance contract, not as proceeds from an estate that was subject to probate. Hence, Ernest had no estate subject to probate.


Michael J. Fitzmaurice South Dakota State Veterans Home v. Estate of Hammer, ---N.W.2d--- (2010 WL 661464, Sup. Ct., S.D., 2010)

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