Detailed Answer
Under North Dakota law, a surviving spouse of a person who dies without a valid will acquires their intestate share of the decedent’s estate as a fee simple interest according to North Dakota Century Code section 30.1-05-01 (NDCC 30.1-05-01). This statute sets out the percentage of the estate a surviving spouse receives depending on the existence of other heirs.
North Dakota law does not permit the surviving spouse to elect a life estate instead of this fee simple intestate share. Instead, the spouse may choose statutory allowances under NDCC 30.1-09-05, including:
- Homestead allowance (up to a set dollar limit in the decedent’s real property);
- Family allowance for support pending administration;
- Exempt personal property up to statutory limits.
By electing these statutory allowances, the spouse forfeits the right to take the intestate share. Conversely, the spouse may waive allowances and instead claim the full fee simple intestate share. If a decedent left a will, the surviving spouse holds an elective share (one-half of the augmented estate) under NDCC 30.1-09-01. That election also produces a fee simple interest, not a life estate.
If you wish to limit your interest to a life estate in property, consider negotiating a family settlement agreement or filing a partition action with co-heirs. Courts may approve life estate arrangements by agreement or court order, but such an election does not arise automatically under North Dakota’s intestate succession statutes.
Disclaimer: This content is for educational purposes only and does not constitute legal advice.
Helpful Hints
- File any spousal election in probate court within six months of appointment of the personal representative.
- Understand that choosing statutory allowances and taking an intestate share are mutually exclusive.
- Review NDCC 30.1-05-01 and 30.1-09-05 for detailed rules on intestate shares and allowances.
- Consider a negotiated family settlement if you need a life estate in property.
- Consult a licensed North Dakota attorney to guide your election or settlement negotiation.