Surviving spouse rights in North Dakota include:
- Homestead Allowance
- Exempt Property
- Family Allowance
- Elective Share
Surviving Spouse Rights in North Dakota When There Is No Valid Will
When a decedent dies without a valid will, they have died intestate. When someone dies intestate, the laws of North Dakota will control the disposition of their probate assets. The surviving spouse’s share (also known as the widow’s share) of the estate depends on the decedent’s other survivors.
Surviving Spouse Entitled To Entire Estate
If the decedent had no surviving descendant or parent, or all of the decedent’s descendants are descendants of the surviving spouse and the surviving spouse has no separate descendants, then the surviving spouse is entitled to the entire estate.
Surviving Spouse Entitled To Partial Share of Estate
If the decedent was survived by descendants or other survivors, the surviving spouse is entitled to part of the intestate estate, as follows:
Survived by parents but no descendants: If the decedent is survived by parents, but not by descendants, the surviving spouse is entitled to $300,000 plus 3/4 of the balance of the intestate estate.
Survived by descendants that are descendants of the surviving spouse and surviving spouse has separate surviving descendants: If the decedent and the surviving spouse have joint surviving descendants, and the surviving spouse has separate surviving descendants, then the surviving spouse is entitled to $225,000 plus 1/2 the balance of the estate.
Survived by one or more descendants who are not descendants of the surviving spouse: If the decedent is survived by one or more descendants that are not share descendants with the surviving spouse, the surviving spouse has the right to $150,000 plus 1/2 the balance of the estate.
Surviving Spouse’s Right To An Elective Share – Election Against The Will
North Dakota law provides that a surviving spouse in North Dakota has a right to share in his or her deceased spouse’s estate regardless of what the will states. In fact, if a surviving spouse is not satisfied with the will’s distribution, the surviving spouse has a right of election to elect against the will and take an elective share of the decedent’s estate.
A surviving spouse may decide to exercise his or her right of election to take an elective share equal to 50% of the “augmented estate.” The augmented estate consists of the sum of the gross estate less the expense of funeral and estate administration, homestead allowance, exemptions, family allowance, and enforceable claims. The augmented estate does not include pensions or life insurance payable to someone other than the surviving spouse. This amount does include, however, the value of any property the surviving spouse would have received from a right of survivorship with the deceased spouse.
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. N.D. Cent. Code, § 30.1-05-01.
In order to exercise the right of election, a surviving spouse must file a petition within nine months after the date of the decedent’s death or within six months after probate of the will.
Allowances and Exemptions
A surviving spouse has the right to certain allowances and exemptions provided by North Dakota law. These rights include:
- Homestead allowance up to $100,000
- Exempt property up to $15,000
- Reasonable maintenance allowance during administration, or up to one year if the estate is insolvent.