2016 North Dakota Century Code Title 30.1 Uniform Probate Code Chapter 30.1-05 Elective Share of Surviving Spouse
Download as PDF
CHAPTER 30.1-05
ELECTIVE SHARE OF SURVIVING SPOUSE
30.1-05-01. (2-202) Elective share.
1. The surviving spouse of a decedent who dies domiciled in this state has a right of
election, under the limitations and conditions stated in this chapter, to take an elective
share amount equal to fifty percent of the augmented estate.
2. If the sum of the amounts described in subdivision d of subsection 2 of section
30.1-05-02, subdivision a of subsection 1 of section 30.1-05-03, and that part of the
elective-share amount payable from the decedent's probate estate and nonprobate
transfers to others under subsections 2 and 3 of section 30.1-05-03 is less than
seventy-five thousand dollars, the surviving spouse is entitled to a supplemental
elective-share amount equal to seventy-five thousand dollars minus the sum of the
amounts described in those sections. The supplemental elective-share amount is
payable from the decedent's probate estate and from recipients of the decedent's
nonprobate transfers to others in the order of priority set forth in subsections 2 and 3 of
section 30.1-05-03.
3. If the right of election is exercised by or on behalf of the surviving spouse, the
surviving spouse's homestead allowance, exempt property, and family allowance, if
any, are not charged against, but are in addition to, the elective-share and
supplemental elective-share amounts.
4. The right, if any, of the surviving spouse of a decedent who dies domiciled outside this
state to take an elective share in property in this state is governed by the law of the
decedent's domicile at death.
30.1-05-02. (2-201, 2-204 through 2-208) Augmented estate.
1. a. In this section:
(1) "Decedent's nonprobate transfers to others" means the decedent's
nonprobate transfers to persons, other than the decedent's spouse,
surviving spouse, the decedent, or the decedent's creditors, estate, or estate
creditors, that are included in the augmented estate under subdivision b of
subsection 2.
(2) "Fractional interest in property held in joint tenancy with the right of
survivorship", whether the fractional interest is unilaterally severable or not,
means the fraction, the numerator of which is one and the denominator of
which, if the decedent was a joint tenant, is one plus the number of joint
tenants who survive the decedent and which, if the decedent was not a joint
tenant, is the number of joint tenants.
(3) "Marriage", as it relates to a transfer by the decedent during marriage,
means any marriage of the decedent to the decedent's surviving spouse.
(4) "Nonadverse party" means a person who does not have a substantial
beneficial interest in the trust or other property arrangement that would be
adversely affected by the exercise or nonexercise of the power that the
person possesses respecting the trust or other property arrangement. A
person having a general power of appointment over property is deemed to
have a beneficial interest in the property.
(5) "Power" or "power of appointment" includes a power to designate the
beneficiary of a beneficiary designation.
(6) "Presently exercisable general power of appointment" means a power of
appointment under which, at the time in question, the decedent, whether or
not the decedent then had the capacity to exercise the power, held a power
to create a present or future interest in the decedent, the decedent's
creditors, the decedent's estate, or the creditors of the decedent's estate,
and includes a power to revoke or invade the principle of a trust or other
property arrangement.
Page No. 1
(7)
2.
"Probate estate" means property, whether movable or immovable, wherever
situated, that would pass by intestate succession if the decedent died
without a valid will.
(8) "Property" includes values subject to a beneficiary designation.
(9) "Right to income" includes a right to payments under a commercial or
private annuity, an annuity trust, a unitrust, or a similar arrangement.
(10) "Transfer", as it relates to a transfer by or of the decedent, includes:
(a) An exercise or release of a presently exercisable general power of
appointment held by the decedent;
(b) A lapse at death of a presently exercisable general power of
appointment held by the decedent; and
(c) An exercise, release, or lapse of a general power of appointment that
the decedent created in the decedent and of a power described in
subparagraph b of paragraph 2 of subdivision b of subsection 2 that
the decedent conferred on a nonadverse party.
b. In subparagraph a of paragraph 3 of subdivision b of subsection 2, "termination",
with respect to a right or interest in property, means that the right or interest
terminated by the terms of the governing instrument or that the decedent
transferred or relinquished the right or interests; and, with respect to a power over
property, means that the power terminated by exercise, release, lapse, in default,
or otherwise, except that, with respect to a power described in subparagraph a of
paragraph 1 of subdivision b of subsection 2, "termination" means that the power
terminated by exercise or release, but not by lapse nor in default or otherwise.
The augmented estate consists of the sum of:
a. The value of the decedent's probate estate, reduced by funeral and
administration expenses, homestead allowance as defined in section 47-18-01,
family allowances, exempt property, and enforceable claims.
b. The value of the decedent's nonprobate transfers to others, which are composed
of all property, whether movable or immovable, wherever situated, not included in
the decedent's probate estate, of any of the following types:
(1) Property of any of the following types that passed outside probate at the
decedent's death:
(a) Property over which the decedent alone, immediately before death,
held a presently exercisable general power of appointment created by
the decedent during the marriage; the amount included is the value of
the property subject to the power, to the extent that the property
passed at the decedent's death, by exercise, release, lapse, in default,
or otherwise, to or for the benefit of any person other than the
decedent's estate or surviving spouse.
(b) The decedent's fractional interest in property, held by the decedent in
joint tenancy with the right of survivorship; the amount included is the
value of the decedent's fractional interest contributed by the decedent
during the marriage, to the extent that that fractional interest passed
by right of survivorship at the decedent's death to a surviving joint
tenant other than the decedent's surviving spouse.
(c) The decedent's ownership interest in property or accounts held in
POD, TOD, or co-ownership registration with the right of survivorship;
the amount included is the value of the decedent's ownership interest,
to the extent that the decedent's ownership interest passed at the
decedent's death to or for the benefit of any person other than the
decedent's estate or surviving spouse.
(2) Property transferred in any of the following forms by the decedent during
marriage:
(a) Any irrevocable transfer in which the decedent retained the right to the
possession or enjoyment of, or the income from, the property if and to
the extent that the decedent's right terminated at or continued beyond
Page No. 2
c.
the decedent's death; the amount included is the value of the fraction
of the property to which the decedent's right related, to the extent that
that fraction of the property passed outside probate to or for the
benefit of any person other than the decedent's estate or surviving
spouse.
(b) Any transfer in which the decedent created a power over the income
or principal of the transferred property, exercisable by the decedent
alone or in conjunction with any other person, or exercisable by a
nonadverse party, for the benefit of the decedent, the decedent's
creditors, the decedent's estate, or the creditors of the decedent's
estate; the amount included is the value of the property subject to the
power, to the extent that the power was exercisable at the decedent's
death to or for the benefit of any person other than the decedent's
surviving spouse or to the extent that the property subject to the power
passed at the decedent's death, by exercise, release, lapse, in default,
or otherwise, to or for the benefit of any person other than the
decedent's estate or surviving spouse.
(3) Property that passed during marriage and during the two-year period next
preceding the decedent's death as a result of a transfer by the decedent if
the transfer was of any of the following types:
(a) Any property that passed as a result of termination of a right or
interest in, or power over, property that would have been included in
the augmented estate under subparagraph a, b, or c of paragraph 1 of
this subdivision, or under paragraph 2 of this subdivision, if the right,
interest, or power had not terminated until the decedent's death; the
amount included is the value of the property that would have been
included under these subsections, except that the property is valued
at the time that the right, interest, or power terminated, and is included
only to the extent that the property passed upon termination to or for
the benefit of any person other than the decedent or the decedent's
estate, spouse, or surviving spouse.
(b) Any transfer of property, to the extent not otherwise included in the
augmented estate, made to or for the benefit of a person other than
the decedent's surviving spouse, the amount included is the value of
the transferred property to the extent that the aggregate transfers to
any one donee in either of the two years exceeded ten thousand
dollars.
The value of the decedent's nonprobate transfers to the decedent's surviving
spouse, which are composed of all property that passed outside probate at the
decedent's death from the decedent to the surviving spouse by reason of the
decedent's death, including:
(1) The decedent's fractional interest in property held as a joint tenant with the
right of survivorship, to the extent that the decedent's fractional interest
passed to the surviving spouse as surviving joint tenant;
(2) The decedent's ownership interest in property or accounts held in
co-ownership registration with the right of survivorship, to the extent the
decedent's ownership interest passed to the surviving spouse as surviving
co-owner;
(3) Proceeds of insurance, including accidental death benefits, on the life of the
decedent, if the decedent owned the insurance policy immediately before
death or if, and to the extent that, the decedent alone and immediately
before death held a presently exercisable general power of appointment
over the policy or its proceeds, the amount included is the value of the
proceeds, to the extent that they were payable at the decedent's death; and
(4) All other property that would have been included in the augmented estate
under paragraph 1 or 2 of subdivision b of this subsection had it passed to
Page No. 3
3.
4.
5.
or for the benefit of a person other than the decedent's spouse, surviving
spouse, the decedent, or the decedent's creditors, estate, or estate
creditors, but excluding property passing to the surviving spouse under the
federal social security system.
d. Except to the extent included in the augmented estate under subdivision a or c,
the value of property:
(1) That was owned by the decedent's surviving spouse at the decedent's
death, including:
(a) The surviving spouse's fractional interest in property held in joint
tenancy with the right of survivorship;
(b) The surviving spouse's ownership interest in property or accounts held
in co-ownership registration with the right of survivorship; and
(c) Property that passed to the surviving spouse by reason of the
decedent's death, but not including the spouse's right to homestead
allowance, family allowance, exempt property, or payments under the
federal social security system.
(2) That would have been included in the surviving spouse's nonprobate
transfers to others, other than the spouse's fractional and ownership interest
included under subparagraphs a and b of paragraph 1, had the spouse been
the decedent. Property included under this paragraph is valued at the
decedent's death, taking the fact that the decedent predeceased the spouse
into account, except that, for purposes of subparagraphs a and b of
paragraph 1, the values of the spouse's fractional and ownership interests
are determined immediately before the decedent's death if the decedent
was then a joint tenant or a co-owner of the property or accounts. The value
of property included under this paragraph is reduced in each category by
enforceable claims against the included property and is reduced by
enforceable claims against the surviving spouse.
The value of any property is excluded from the decedent's nonprobate transfers to
others to the extent the decedent received adequate and full consideration in money or
money's worth for a transfer of the property or if the property was transferred with the
written joinder of, or if the transfer was consented to in writing by, the surviving spouse.
Life insurance, accident insurance, pension, profit-sharing, retirement, and other
benefit plans payable to persons other than the decedent's surviving spouse or the
decedent's estate are also excluded from the decedent's nonprobate transfers.
The value of property includes the commuted value of any present or future interest
and the commuted value of amounts payable under any trust, life insurance settlement
option, annuity contract, public or private pension, disability compensation, death
benefit or retirement plan, or any similar arrangement, exclusive of the federal social
security system.
In case of overlapping application to the same property of the paragraphs or
subparagraphs of subsection 2, the property is included in the augmented estate
under the provision yielding the highest value, but under any one, but only one, of the
overlapping provisions if they all yield the same value.
30.1-05-03. (2-209) Sources from which elective share payable.
1. In a proceeding for an elective share, the following are applied first to satisfy the
elective-share amount and to reduce or eliminate any contributions due from the
decedent's probate estate and recipients of the decedent's nonprobate transfers to
others:
a. Amounts included in the augmented estate under subdivision a of subsection 2 of
section 30.1-05-02 which pass or have passed to the surviving spouse by testate
or intestate succession and amounts included in the augmented estate under
subdivision c of subsection 2 of section 30.1-05-02; and
b. Amounts included in the augmented estate under subdivision d of subsection 2 of
section 30.1-05-02.
Page No. 4
2.
3.
If, after the application of subsection 1, the elective-share amount is not fully satisfied
or if the surviving spouse is entitled to a supplemental elective-share amount, amounts
included in the decedent's probate estate and in the decedent's nonprobate transfers
to others, other than amounts included under subparagraph a or b of paragraph 3 of
subdivision b of subsection 2 of section 30.1-05-02, are applied first to satisfy the
unsatisfied balance of the elective-share amount or the supplemental elective-share
amount. The decedent's probate estate and that portion of the decedent's nonprobate
transfers to others are so applied that liability for the unsatisfied balance of the
elective-share amount or for the supplemental elective-share amount is equitably
apportioned among the recipients of the decedent's probate estate and of that portion
of the decedent's nonprobate transfers to others in proportion to the value of their
interests therein.
If, after the application of subsections 1 and 2, the elective-share or supplemental
elective-share amount is not fully satisfied, the remaining portion of the decedent's
nonprobate transfers to others is so applied that liability for the unsatisfied balance of
the elective-share or supplemental elective-share amount is equitably apportioned
among the recipients of that remaining portion of the decedent's nonprobate transfers
to others in proportion to the value of their interests therein.
30.1-05-04. (2-210) Personal liability of recipients.
1. Only original recipients of the decedent's nonprobate transfers to others, and the
donees of the recipients of the decedent's nonprobate transfers to others, to the extent
the donees have the property or its proceeds, are liable to make a proportional
contribution toward satisfaction of the surviving spouse's elective-share or
supplemental elective-share amount. A person liable to make contribution may choose
to give up the proportional part of the decedent's nonprobate transfers to the person or
to pay the value of the amount for which the person is liable.
2. If any section or part of any section of this chapter is pre-empted by federal law with
respect to a payment, an item of property, or any other benefit included in the
decedent's nonprobate transfers to others, a person who, not for value, receives the
payment, item of property, or any other benefit, is obligated to return that payment,
item of property, or benefit, or is personally liable for the amount of that payment or the
value of that item of property or benefit, as provided in section 30.1-05-03, to the
person who would have been entitled to it were that section or part of that section not
pre-empted.
30.1-05-05. (2-211) Proceeding for elective share - Time limit.
1. Except as provided in subsection 2, the election must be made by filing in the court
and mailing or delivering to the personal representative, if any, a petition for the
elective share within nine months after the date of the decedent's death, or within six
months after the probate of the decedent's will, whichever limitation later expires. The
surviving spouse shall serve a copy of the petition for the elective share on, and shall
give written notice of the time and place set for hearing to persons interested in the
estate and to the distributees and recipients of portions of the augmented estate
whose interests may be adversely affected by the taking of the elective share. Except
as provided in subsection 2, the decedent's nonprobate transfers to others, described
in subdivision b of subsection 2 of section 30.1-05-02, is not included within the
augmented estate for the purpose of computing the elective share, if the petition is
filed more than nine months after the decedent's death.
2. Within nine months after the decedent's death, the surviving spouse may petition the
court for an extension of time for making an election. If, within nine months after the
decedent's death, the spouse gives notice of the petition to all persons interested in
the decedent's nonprobate transfers to others, the court for cause shown by the
surviving spouse may extend the time for election. If the court grants the spouse's
petition for an extension, the decedent's nonprobate transfers to others, described in
subdivision b of subsection 2 of section 30.1-05-02, are not excluded from the
Page No. 5
3.
4.
5.
6.
augmented estate for the purpose of computing the elective-share and supplemental
elective-share amounts, if the spouse makes an election by filing in the court and
mailing or delivering to the personal representative, if any, a petition for the elective
share within the time allowed by the extension.
The surviving spouse may withdraw a demand for an elective share at any time before
entry of a final determination by the court.
After notice and hearing, the court shall determine the elective-share and
supplemental elective-share amounts, and shall order its payment from the assets of
the augmented estate or by contribution as appears appropriate under sections
30.1-05-03 and 30.1-05-04. If it appears that a fund or property included in the
augmented estate has not come into the possession of the personal representative, or
has been distributed by the personal representative, the court nevertheless shall fix
the liability of any person who has any interest in the fund or property or who has
possession thereof, whether as trustee or otherwise. The proceeding may be
maintained against fewer than all persons against whom relief could be sought, but no
person is subject to contribution in any greater amount than the person would have
been under sections 30.1-05-03 and 30.1-05-04, had relief been secured against all
persons subject to contribution.
An order or judgment of the court may be enforced as necessary in suit for contribution
or payment in other courts of this state or other jurisdictions.
A copy of the order or judgment of the court shall be forwarded immediately to the tax
commissioner by the court.
30.1-05-06. (2-212) Right of election personal to surviving spouse - Incapacitated
surviving spouse.
1. The right of election may be exercised only by a surviving spouse who is living when
the petition for the elective share is filed in the court under subsection 1 of section
30.1-05-05. If the election is not exercised by the surviving spouse personally, it may
be exercised on the surviving spouse's behalf by the surviving spouse's conservator,
guardian, or agent under the authority of a power of attorney.
2. If the election is exercised on behalf of a surviving spouse who is an incapacitated
person, the court shall set aside that portion of the elective-share and supplemental
elective-share amounts due from the decedent's probate estate and recipients of the
decedent's nonprobate transfers to others under subsections 2 and 3 of section
30.1-05-03 and shall appoint a trustee to administer that property for the support of the
surviving spouse. For the purposes of this subsection, an election on behalf of a
surviving spouse by an agent under a durable power of attorney is presumed to be on
behalf of a surviving spouse who is an incapacitated person. The trustee shall
administer the trust in accordance with the following terms and any additional terms as
the court determines appropriate:
a. Expenditures of income and principal may be made in the manner, when, and to
the extent that the trustee determines suitable and proper for the surviving
spouse's support, without court order but with regard to other support, income,
and property of the surviving spouse exclusive of benefits of medical or other
forms of assistance from any state or federal government or governmental
agency for which the surviving spouse must qualify on the basis of need.
b. During the surviving spouse's incapacity, neither the surviving spouse nor anyone
acting on behalf of the surviving spouse has a power to terminate the trust; but if
the surviving spouse regains capacity, the surviving spouse then acquires the
power to terminate the trust and acquire full ownership of the trust property free of
trust, by delivering to the trustee a writing signed by the surviving spouse
declaring the termination.
c. Upon the surviving spouse's death, the trustee shall transfer the unexpended
trust property in the following order: under the residuary clause, if any, of the will
of the predeceased spouse against whom the elective share was taken, as if that
Page No. 6
predeceased spouse died immediately after the surviving spouse; or to that
predeceased spouse's heirs under section 30.1-09.1-11.
30.1-05-07. (2-213) Waiver of right to elect and of other rights.
Repealed by S.L. 2013, ch. 121, § 2.
30.1-05-08. (2-214) Protection of payers and other third parties.
1. Although under section 30.1-05-02 a payment, item of property, or other benefit is
included in the decedent's nonprobate transfers to others, a payer or other third party
is not liable for having made a payment or transferred an item of property or other
benefit to a beneficiary designated in a governing instrument, or for having taken any
other action in reliance on the validity of a governing instrument, upon request and
satisfactory proof of the decedent's death, before the payer or other third party
received written notice from the surviving spouse or spouse's representative of an
intention to file a petition for the elective share or that a petition for the elective share
has been filed. A payer or other third party is liable only for actions taken two or more
business days after the payer or other third party received written notice of an intention
to file a petition for the elective share or that a petition for the elective share has been
filed. The written notice must indicate the name of the decedent, the date of the
decedent's death, the name of the person asserting an interest, the nature of the
payment or item of property or other benefit, and a statement that the spouse intends
to file a petition for the elective share or that a petition for the elective share has been
filed. Any form of service of notice other than that described in subsection 2 is not
sufficient to impose liability on a payer or other third party for actions taken pursuant to
the governing instrument.
2. The written notice must be mailed to the payer's or other third party's main office or
home by registered mail or served upon the payer or third party in the same manner
as a summons in a civil action. Notice to a sales representative of the payer or other
third party does not constitute notice to the payer or other third party. Upon receipt of
written notice of intention to file a petition for the elective share or that a petition for the
elective share has been filed, a payer or other third party may pay any amount owed
or transfer or deposit any item of property held by it to or with the court having
jurisdiction of the probate proceedings relating to the decedent's estate, or if no
proceedings have been commenced, to or with the court having jurisdiction of probate
proceedings relating to decedents' estates located in the county of the decedent's
residence. The availability of an action under this section does not prevent the payer or
other third party from taking any other action authorized by law or the governing
instrument. If no probate proceedings have been commenced, the payer or other third
party shall file with the court a copy of the written notice received by the payer or other
third party, with the payment of funds or transfer or deposit of property. The court may
not charge a filing fee to the payer or other third party for any such payment, transfer,
or deposit with the court, even if no probate proceedings have been commenced
before the payment, transfer, or deposit. The court shall hold the funds or items of
property and, upon its determination under subsection 4 of section 30.1-05-05, shall
order disbursement in accordance with the determination. If no petition is filed in the
court within the specified time under subsection 1 of section 30.1-05-05, or, if filed, the
demand for an elective share is withdrawn under subsection 3 of section 30.1-05-05,
the court shall order disbursement to the designated beneficiary. A filing fee, if any,
may be charged upon disbursement either to the recipient or against the funds or
property on deposit with the court, in the discretion of the court. Payments, transfers,
or deposits made to or with the court discharge the payer or other third party from all
claims under the governing instrument or applicable law for the value of amounts paid
to or items of property transferred to or deposited with the court.
3. Upon petition to the court by the beneficiary designated in a governing instrument, the
court may order that all or part of the property be paid to the beneficiary in an amount
and subject to conditions consistent with this section.
Page No. 7
Disclaimer: These codes may not be the most recent version. North Dakota may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
