South Dakota Bankruptcy Exemptions
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South Dakota Exemptions
A debtor generally may claim exemption of his homestead and personal property from execution of a judgment against him or in a bankruptcy proceeding. South Dakota statutes provide "absolute" exemptions of a judgment debtor's homestead and certain personal property to sustain the basic needs and necessities of the debtor and his family. (Sections 43-45-2 and 43-45-3.)
Other additional property exemptions may include goods, chattels, merchandise, money or other personal property not exceeding in the aggregate four thousand dollars in value, miscellaneous books and musical instruments not exceeding two hundred dollars in value, domestic animals limited in numbers, and other tools of trades limited in value. To insure that a debtor enjoys the comforts and necessities of life during retirement years, the State of South Dakota also permits exemption of certain retirement benefits or employee's benefit plans. (Sections 43-45-15.)
While the federal Bankruptcy Code also provides certain exemptions, South Dakota does not permit the election of federal exemptions. (Section 43-45-13.) This means that a resident of South Dakota may only claim exemption of those property and to the extent as permitted under Chapter 43-45 of the South Dakota Codified Laws even if the exemption provided under the federal Bankruptcy Code may be more beneficial to the judgment debtor.
Title 43. Property
Chapter 43-45. Personal Property Exempt from Process
43-45-1. Scope of exemptions of personal property
Except as hereinafter provided, the property mentioned in this chapter is exempt from attachment or mesne process, and from levy and sale on execution, and from any other final process issued from any court.
43-45-2. 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:
(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.
43-45-3. Homestead absolutely exempt--Extent of exemption when homestead sold
(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 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.
43-45-4. 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.
43-45-6. 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.
43-45-7. Persons to whom exemptions do not apply
Except those made absolute, the exemptions provided by this chapter do not apply to the following persons:
(1) To a nonresident;
(2) To a debtor who is in the act of removing with his family from the state;
(3) To a debtor who has absconded, taking with him his family;
(4) To a debtor for the necessaries of life, including only food, clothing, and fuel, provided for the debtor or his family;
(5) To a debtor for assistance or services furnished by the state to or on behalf of his children or spouse, by virtue of assignment of support rights to the state;
(6) To a debtor for child and spousal support obligations; or
(7) To a debtor for assistance or services furnished to the debtor by or through the Department of Social Services.
43-45-8. Exemption not allowed for purchase money or construction costs
No exemption shall be allowed any person against an attachment or execution issued for the purchase money of property or for the agreed or reasonable cost of the material furnished or labor performed in the original erection and construction of buildings thereon, claimed to be exempt, and on which such attachment or execution is levied.
43-45-9. Debt incurred for property obtained under false pretenses--Allowance only of absolute exemptions
No exemptions, except the absolute exemptions, shall be allowed any person against an execution or other process issued upon a debt incurred for property obtained under false pretenses.
43-45-10. Judgment for fines, penalties, or costs of criminal prosecutions--Limited exemptions
No property, except the homestead and other exemptions made absolute, shall be exempt from levy, seizure, and sale by virtue of any final writ or process issued on a judgment for fines, penalties, or costs of criminal prosecutions.
43-45-11. Judgment for forfeiture of undertakings and bonds taken in criminal cases--Limited exemptions
No property except the homestead and other exemptions made absolute, and personal property of any kind in addition thereto to the value of five hundred dollars, shall be exempt from levy, seizure, or sale, by virtue of any final writ or process issued on a judgment for forfeitures of undertakings and bonds, or of recognizance taken and entered in criminal cases.
43-45-12. Inventory and appraisement of exempted or other personal property--Return by officer having process of levy or sale
The sheriff or other officer having any process of levy or sale must make return, with his writ or warrant, of any inventory and appraisement of any such exempted or other personal property.
43-45-13. Certain federal bankruptcy exemptions not available
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.
43-45-14. Exemption of earnings from garnishment process or levy-Bankruptcy
For purposes of garnishment, the earnings of a debtor are exempt from process or levy only to the extent provided in §§ 21-18-51 to 21-18-53, inclusive. For the purposes of a petition filed pursuant to 11 U.S.C. § 301 et. seq. only, a debtor's claimed exemptions may include earned, but unpaid earnings, whether or not such earnings have been garnished, subject to the limits of § 43-45-4 and provisions of 11 U.S.C. § 547.
43-45-15. Legislative intent
The Legislature of the State of South Dakota hereby declares that §§ 43-45-16 to 43-45-18, inclusive, is for the purpose of absolutely exempting certain retirement benefits in a reasonable amount from all process, levy, or sale pursuant to the S.D. Const., Art. XXI, § 4. The Legislature hereby finds §§ 43-45-16 to 43-45-18, inclusive, is necessary to insure that a debtor enjoys the comforts and necessities of life during retirement years.
43-45-16. 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.
43-45-17. Employee benefit plan defined
For the purposes of §§ 43-45-16 to 43-45-18, inclusive, the term, employee benefit plan, means any plan or arrangement that is subject to the provisions of 29 U.S.C. §§ 1001 through 1461, as amended, and in effect on January 1, 2007, or that is described in § 401, 403(a), 403(b), 408, 408A, 409, 414, 457, or 501(a) of the Internal Revenue Code, as amended, and in effect as of January 1, 2007. The term, employee benefit plan, does not include any employee benefit plan that is excluded from application pursuant to 29 U.S.C. § 1003(b)(1), as amended, and in effect as of January 1, 2007.
43-45-18. Court determination of appropriate exemption
In the event that any court of South Dakota finds the exemption provided in § 43-45-16 is excessive, the court is hereby directed to determine the amount of the exemption permissible under the S.D. Const., Art. XXI, § 4.
- A debtor generally may claim exemption of his homestead and personal property from execution of a judgment against him or in a bankruptcy proceeding.
- Other Property: Other additional property exemptions may include goods, chattels, merchandise, money or other personal property not exceeding in the aggregate four thousand dollars in value
- While the federal Bankruptcy Code also provides certain exemptions, South Dakota does not permit the election of federal exemptions. This means that a resident of South Dakota may only claim exemption of those property and to the extent...of the South Dakota Codified Laws even if the exemption provided under the federal Bankruptcy Code may be more beneficial to the judgment debtor.