(dissenting).
I dissent. Lorene filed her petition for her elective share within the time allowed by the amendment of SDCL 30-5A-6, when applied prospectively.
The chronology set forth in the majority opinion shows vividly how unfair the result is. It states that on March 25, 1984, six months after Robert’s death, “Lorene’s right to petition for elective share expires” — under an amendment to SDCL 30-5A-6 that will not be enacted until 1987.
The chronology then states that on July 1, 1987, when the amendment to SDCL 30-5A-6 takes effect, “Lorene now has six months from date of Robert’s death to file an elective share petition.” At this point, Robert has been dead nearly four years.
Clearly something is wrong here. The source of the problem may be in the majority’s misapplication of Estate of Clyde, 423 N.W.2d 513 (S.D.1988). In Clyde, we held that, under the pre-1987 version of SDCL 30-5A-6, the right of a surviving spouse to petition for elective share is triggered by notice to creditors, not by decedent’s death. Note that there is no time limitation in SDCL 30-5A-6 or 30-21-13 restricting when this triggering notice to creditors must be published.
Therefore, at the time of Robert’s death in 1983, Lorene could petition for letters of administration, causing notice to creditors to be published, at any time. SDCL 30-21-13, 30-6-8, 30-9-12. Upon this notice to creditors, Lorene’s right to petition for elective share would vest and would expire two months thereafter.
The 1987 amendment to SDCL 30-5A-6 affected this right of surviving spouses to give notice to creditors and thereby be vested with the right to petition for elective share. Since 1987, surviving spouses may still cause notice to creditors to be published at any time, but publication no longer has the same legal effect. It no longer causes their right to petition for elective share to become vested. Under the 1987 amendment to SDCL 30-5A-6, that right now vests upon the death of decedent and expires six months later regardless of when notice to creditors is published.
Because the 1987 amendment to SDCL 30-5A-6 alters the law of elective share petitions in this way, it should not be given retroactive effect. A legislative enactment is not to be retroactively applied unless there is a clear legislative intent to do so. First Nat’l Bank of Minneapolis v. Kehn Ranch, 394 N.W.2d 709, 716 (S.D.1986). See also SDCL 2-14-21 (“No part of the code of laws ... shall be construed as retroactive unless such intention plainly appears”). There is no clear legislative intent here to have Lorene’s right to file terminated immediately upon the effective date of the act. Kehn Ranch, supra. Lorene complied completely with the statutory scheme in effect at Robert’s death, under which Robert’s death triggered Lorene’s right to cause notice to creditors to be published, and publication of notice to creditors triggered Lorene’s right to petition for elective share.
If the 1987 amendment to SDCL 30-5A-6 merely cut short the time in which Lorene could petition for elective share prospectively, that would be a procedural change which could be given retroactive effect even if Lorene's substantive rights were affected. See West v. John Morrell & Co., 460 N.W.2d 745, 748 (S.D.1990) (Sabers, J., concurring in result and joined by Miller, J.). However, that is not the case. The 1987 amendment, if applied retroactively, means that for Lorene, a right which the legislature intended her to have never came into existence at all. In effect, the majority opinion holds that on June 30, 1987, it was too soon for Lorene’s right to petition for elective share to become vested, but on July 1, 1987, it was too late. The majority's misapplication of SDCL 30-5A-6 constitutes ex post facto lawmaking as to Lorene which violates her rights under the federal and state constitutions. U.S. Const, art. I, § 9, cl. 3; S.D. Const, art. VI, § 12. We should reverse and remand.