Spousal Elective Share Requirements in North Dakota

At a glance

Requirements one by one

The share is a flat half with a shortfall supplement

North Dakota does not scale the percentage by marriage length. The elective- share amount is 50% of the augmented estate in every qualifying marriage.

The $75,000 supplemental amount is a shortfall formula, not an automatic bonus. Section 30.1-05-01 compares the spouse's included property and specified amounts already satisfying or payable toward the share. If their sum is below $75,000, the supplement is the difference. Homestead allowance, exempt property, and family allowance remain additional.

The augmented estate has four components

Section 30.1-05-02 combines the net probate estate, the decedent's nonprobate transfers to others, the decedent's nonprobate transfers to the spouse, and the spouse's own property and modeled nonprobate transfers.

The transfer-to-others component reaches specified powers of appointment, survivorship interests, POD and TOD property, retained-benefit and retained- power transfers, and certain transfers within two years before death. The recent-gift catchall includes value above $10,000 transferred to one donee in either year. Unlike several UPC states, North Dakota expressly excludes life insurance, accident insurance, pensions, profit-sharing, retirement, and other benefit plans payable to someone other than the spouse or estate.

Deductions and consent narrow the base

The probate component is reduced by funeral and administration expenses, homestead and family allowances, exempt property, and enforceable claims. Spouse-owned property and modeled spouse transfers are also reduced by the claims stated in § 30.1-05-02.

Adequate consideration and the spouse's written joinder or consent exclude a transfer from the decedent-to-others category. Present and future interests use commuted value, and overlapping provisions include property only once under the route producing the highest value.

The later filing deadline can still cut off nonprobate property

The petition is due by the later of nine months after death or six months after probate of the will. It must be filed in court and mailed or delivered to the personal representative. The spouse must also serve the petition and written hearing notice on interested persons and augmented-estate recipients whose interests may be adversely affected.

To preserve the decedent's nonprobate transfers to others after nine months, the spouse must petition for an extension and notify all persons interested in those transfers within nine months after death. The spouse may withdraw the election before final determination.

Incapacity changes who holds the contributed property

The spouse must be alive when the petition is filed. A conservator, guardian, or power-of-attorney agent may act on the spouse's behalf.

When an election is made for an incapacitated spouse, the court must place the amount coming from the probate estate and nonprobate recipients into a support trust. An election by a durable-power-of-attorney agent is presumed to be for an incapacitated spouse. If capacity returns, the spouse may terminate the trust by signed writing. At death, unspent property passes under the predeceased spouse's residuary clause or to that spouse's heirs under the statute.

Current waiver law is outside the elective-share chapter

North Dakota repealed former § 30.1-05-07 in 2013. For premarital and marital agreements signed after July 31, 2013, current Chapter 14-03.2 expressly covers waiver of property rights at a spouse's death. Formation requires a record signed by both parties and no consideration.

Enforcement requires voluntary consent, access to independent representation, an uncounseled party's conspicuous rights notice or plain-language explanation, and adequate financial disclosure through the statute's disclosure, separate- record waiver, or knowledge routes. A court may also reject a term that was unconscionable at signing or would cause substantial hardship after a material change. Older agreements remain governed by the law applicable to them.

Every included spouse asset is credited first

The satisfaction rule first applies probate and nonprobate property passing to the spouse and the property included as the spouse's own property or transfers. It then apportions any shortfall among the probate estate and most nonprobate recipients, followed by the remaining recent-transfer categories.

Original nonprobate recipients and donees who still hold the property or its proceeds contribute proportionally. They may pay the assessed value or surrender the corresponding property. Benefits passing to the spouse under the will or intestacy are initial credits; the chapter does not automatically forfeit them when the spouse elects.

What trips people up

• The $75,000 amount is not added automatically. It fills only the shortfall after the property and payments specified in § 30.1-05-01.
• North Dakota excludes several third-party death benefits. Insurance and listed benefit plans payable to someone other than the spouse or estate are outside the decedent-to-others component.
• The later-of deadline has a nine-month nonprobate cutoff. A petition can be timely after late probate yet lose nonprobate-to-others property without a timely extension.
• The old waiver section is repealed. Current post-2013 agreements use the more demanding Chapter 14-03.2 framework, not former Chapter 14-03.1.

Common questions

Can an agent make the election without triggering the incapacity trust? Section 30.1-05-06 presumes an election by an agent under a durable power of attorney is on behalf of an incapacitated spouse, so the statutory trust rule applies unless the legal premise is resolved otherwise.

Who receives a copy of the final order? Section 30.1-05-05(6) directs the court to forward it immediately to the North Dakota tax commissioner.

What if federal law preempts contribution from a benefit? Section 30.1-05-04 makes a recipient who took without value return the benefit or bear personal liability measured through the statutory payment order.

Statutes and sources

• N.D. Cent. Code § 30.1-05-01 — flat 50% share, $75,000 supplement, additional allowances, and nonresident rule. Official current Chapter 5 PDF (accessed 2026-08-02).
• N.D. Cent. Code § 30.1-05-02 — augmented-estate components, included and excluded transfers, deductions, valuation, and overlap. Official current Chapter 5 PDF (accessed 2026-08-02).
• N.D. Cent. Code § 30.1-05-03 and § 30.1-05-04 — satisfaction order and recipient contribution. Official current Chapter 5 PDF (accessed 2026-08-02).
• N.D. Cent. Code § 30.1-05-05 — filing, delivery, service, later-of deadline, extension, nonprobate cutoff, withdrawal, decision, and tax- commissioner copy. Official current Chapter 5 PDF (accessed 2026-08-02).
• N.D. Cent. Code § 30.1-05-06 — living-spouse and representative routes and incapacitated-spouse trust. Official current Chapter 5 PDF (accessed 2026-08-02).
• N.D. Cent. Code § 14-03.2-01, § 14-03.2-05, and § 14-03.2-08 — current premarital/marital death-right waiver, signed record, and enforceability safeguards. Official current Chapter 14-03.2 PDF (accessed 2026-08-02).