STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 20, 1972

Miss Alice Kundert
State Auditor
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 72-51

Proper to pay one month salary and accrued vacation time to spouse or children of deceased state employee satisfying the requirements of statute (SDCL 3-6-6; 3-6-8).

Dear Miss Kundert:

You have requested my opinion in answer to this question:

State employee X departed this life. At the t1me of his death his last month's salary, accrued sick leave and vacation time had not been paid by the state treasurer on warrants drawn by the state auditor.

The question propounded in connection with this factual situation is:

In the absence of some form of probate of X's estate, does SDCL 3-6-6 and 3-6-8 authorize me to pay to the surviving wife or children any moneys by way of salary, or vacation time for any period exceeding sixty days prior to the death of a state employee?

SDCL 3-6-6 provides for accrual and accumulation of vacation time for state employees. As part of such enactment, it is provided:

Provided, also, that in the case of death of the employee, payment for such accumulated leave of absence for vacation time shall be paid in the same manner as is provided under the provisions of Sections 3-8-8 to 3-8-11, inclusive.

SDCL 3-8-8 provides:

Accrued compensation payable to spouse and children of deceased employee if estate exempt from creditors' claims.

It shall be lawful for the disbursing officers of the state or any of its political subdivisions to pay, or cause to be paid, any lawful claim for salaries, wages, compensation, fees, and expenses due from the state or any of its political subdivisions to any deceased employee thereof, to the spouse or minor children of such employee.

Provided, that such claim for salaries, wages, compensation, fees, or expenses has accrued within sixty days prior to the death of such deceased employee. The provisions of this section shall apply only in cases where such deceased employee died possessed of no property, real or personal, except such as is exempt from claims of the creditors of such deceased employee.

SDCL 3-8-8 sets forth the information required before payment: to the spouse or children; 3-8-9 emphasizes that probate proceedings are not a requisite to such payments, and 3-8-11 sets forth the method of cancelling and replacement of warrants issued to such deceased employee which at: the time of his death remained unpaid.

The whole tenor of the statutes is to provide a method of payment of unpaid compensation, salary, wages, fees, expenses or accrued vacation time to the spouse or children of the deceased employee, who satisfy the requirements of the statutes, without such persons resorting to probate proceedings as a condition precedent to collecting such moneys. It is my opinion that: in those instances where such deceased employee died possessed of no property, real or personal, except such as is exempt from claims of the creditors of such deceased employee, and his surviving spouse or children prepare the necessary information documents, the statute should be construed liberally in favor of payment, rather than restrictively so as to require probate.

In the instance you have cited, clearly the one month salary owing such decedent is within the purview of the statute, and can be paid, in the situation where the other requirements of the statute are satisfied.

I look upon the award of vacation time to state employees, and the statutory permission to accrue vacation time, as a continuing process. It may be likened to a "running account" which many persons carry with their local grocery store. Each month's accumulation of vacation time, if such is not used, is not a separate and distinct segment of the total, but rather the accumulated vacation time is continuing in nature. Added days of vacation time are earned every month and added to the accumulative total. So long as any vacation time is available at the time of death, the total amount of unused and accumulated vacation time available has "accrued within sixty days prior to the death of such deceased employee." Such vacation time as accumulated cannot exceed vacation time as may be earned in a two year period of regular and continuous employment. (SDCL 3-6-6).

If the requirements of this statute cited are satisfied, it is my opinion that it is proper to reimburse the spouse or children of the deceased state employee for all such accrued vacation time as is due at the time of the death of such state employee.

Respectfully submitted,

Gordon Mydland
Attorney General