Disclaimer: This article is for informational purposes only and does not constitute legal advice.
Detailed Answer
In North Dakota, a surviving spouse may request a family allowance from the decedent’s estate to cover basic support during probate. Under N.D. Cent. Code § 30.1-12-02 (Family Allowance), the court may set aside a reasonable allowance from the estate before distributing assets to heirs.
To qualify, the claimant must prove a valid marriage existed at the time of death. When the official marriage certificate is incomplete or missing, the court may pause the allowance process until marital status is established. Without clear evidence, the court cannot confirm eligibility under the statute.
Proving Marriage Without a Certificate
- Review the marriage license. Even if the certificate wasn’t returned to the county recorder, the license itself offers prima facie proof.
- Gather secondary evidence. Sworn affidavits from officiants, witnesses, or family members can corroborate that the marriage ceremony took place.
- Present religious or tribal records. Churches or tribal entities often maintain logs of ceremonies that courts accept as proof if civil documentation is lacking.
Legal Remedies for a Missing Certificate
- File for a delayed or supplemental certificate under N.D. Cent. Code § 14-03-06 (Delayed Certificate of Marriage).
- Submit a certified copy of the license from the county clerk’s archives if the original was lost.
- Ask the probate court for an order allowing alternative proof of marriage before resolving the allowance claim.
Impact on Family Allowance Claim
If the court accepts alternative proof, the surviving spouse regains eligibility and the estate administrator must set aside the family allowance. If proof remains insufficient, the court may deny the allowance or defer any distribution until marital status is clarified. This delay can affect the spouse’s immediate financial needs and create additional legal costs.
Helpful Hints
- Act promptly. File any petitions for delayed certificates early to avoid probate delays.
- Collect witness statements. Detailed affidavits strengthen your position when primary documents are unavailable.
- Consult the probate clerk. They can guide you on local filing requirements for marriage records.
- Keep copies of all filings. Maintain clear records of petitions, orders, and communications with the court.
- Consider legal counsel. An attorney can navigate procedural hurdles and advocate for timely allowance awards.