Part IV: Parties · Last amended 1993 · Last verified July 16, 2026
In one sentenceRule 15-6-25 governs what happens to a pending South Dakota case when a party dies, becomes incompetent, transfers an interest, or leaves a public or private office, setting a ninety-day deadline for substitution after death is suggested on the record and a procedure for bringing in a successor.
(1)If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in § 15-6-5 and upon persons not parties in the manner provided in § 15-6-4 for the service of a summons. Unless the motion for substitution is made not later than ninety days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.
(2)In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.
(b)Incompetency of party. If a party becomes incompetent, the court upon motion served as provided in § 15-6-25(a) may allow the action to be continued by or against his guardian, conservator or guardian ad litem.
(c)Transfer of interest to other person. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in § 15-6-25(a).
(d)Public or private officer as party — Substitution of successor.
(1)When a public officer, officer of a private corporation as such, personal representative or trustee is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.
(2)When such officer sues or is sued in his official capacity, he may be described as a party by his official title rather than by name; but the court may require his name to be added.
(e)Successor in interest in real property. When a judgment is recovered for the possession of real property and the party recovering such judgment shall have died subsequent to the recovery thereof, his successor in interest in said real property, whether by grant, devise, or inheritance, may revive said judgment and enforce the same by execution on motion, within one year after said death, or afterwards on supplemental complaint.
Plain-English Summary
Subdivision (a) handles a party’s death. If the underlying claim survives the party, the court may order substitution of the proper parties, on motion by any party or by the deceased’s successors or representatives, served the way papers are served under § 15-6-5 and, on non-parties, the way a summons is served under § 15-6-4. Once the death is suggested on the record through service of a statement to that effect, the motion for substitution must follow within ninety days or the action is dismissed as to the deceased party. When the right at issue survives only to the remaining plaintiffs or defendants, none of this is necessary — the death need only be suggested on the record, and the case proceeds without abating.
Subdivision (b) covers a party who becomes incompetent: the court, on a motion served the same way, may let the action continue by or against that party’s guardian, conservator, or guardian ad litem. Subdivision (c) addresses a transfer of interest during the case — the action may continue by or against the original party unless the court, on motion served the same way, orders the transferee substituted in or joined.
Subdivision (d) deals with a public officer, or an officer of a private corporation sued in that official capacity, who dies, resigns, or otherwise leaves office during the case. The action does not abate; the successor is automatically substituted, proceedings continue in the substituted party’s name, and any misnomer that does not affect substantial rights is disregarded — an order of substitution helps but is not required for the substitution to take effect. Such an officer may be sued or described by title rather than name, though the court can require the name to be added. Subdivision (e) lets a successor in interest in real property revive and enforce a judgment for possession, by motion within one year of the judgment holder’s death, or afterward by supplemental complaint.
Frequently Asked Questions
What happens if a party dies while a South Dakota lawsuit is pending?
Under Rule 15-6-25(a), if the claim is not extinguished by the death, the court may order substitution of the proper parties, but the motion must be made within ninety days after the death is suggested on the record or the action is dismissed as to that party.
Who can ask the court to substitute a deceased party’s representative into the case?
Rule 15-6-25(a) allows the motion for substitution to be made by any party or by the successors or representatives of the deceased party.
What happens if a party becomes incompetent while the case is pending?
Rule 15-6-25(b) lets the court, on motion, allow the action to continue by or against that party’s guardian, conservator, or guardian ad litem.
Does a case have to be refiled if a public official who is a party leaves office?
No. Rule 15-6-25(d) provides that the action does not abate, and the official’s successor is automatically substituted, whether or not an order of substitution is ever entered.
What happens if someone transfers their interest in the property being litigated during the case?
Rule 15-6-25(c) lets the action continue by or against the original party unless the court, on motion, orders the transferee substituted in or joined with the original party.
Amendment History
(a)SDC 1939 & Supp 1960, § 33.0414; SD RCP, Rule 25 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.
(b)SDC 1939 & Supp 1960, § 33.0414; SD RCP, Rule 25 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1993, ch 213, § 90.
(c)SDC 1939 & Supp 1960, § 33.0414; SD RCP, Rule 25 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.
(d)SDC 1939 & Supp 1960, § 33.0414; SD RCP, Rule 25 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.
(e)SDC 1939 & Supp 1960, § 33.0414; SD RCP, Rule 25 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.
Source & verification. Rule text and History are
reproduced verbatim from the South Dakota Codified Laws, published by the
South Dakota Legislative Research Council. Last verified July 16, 2026.
· Official source
Also known as:substitution of parties after death south dakotaninety day deadline suggestion of death sdparty becomes incompetent during lawsuit south dakotapublic officer successor substitution sdtransfer of interest during litigation south dakota