Omitted or Pretermitted Children Under Wills in North Dakota
At a glance
| Will and child covered | Omitted afterborn or after-adopted child; living child mistakenly believed dead also covered (§ 30.1-06-02(1), (3)). |
|---|---|
| Birth or adoption timing | Birth or adoption after execution; mistaken-death rule applies to child living then (§ 30.1-06-02(1), (3)). |
| Naming and provision test | Will fails to provide for later child; mistaken-death omission must be solely from belief child was dead (§ 30.1-06-02(1), (3)). |
| Intentional omission | No later-child share if intent to omit appears from will (§ 30.1-06-02(2)(a)). |
| Other-parent gifts | No-child route excepts substantially-all devise to other parent who survives and is entitled to take (§ 30.1-06-02(1)(a)). |
| Outside gifts and advancements | Outside transfer defeats share if in-lieu intent shown by statements or reasonably inferred from amount or other evidence (§ 30.1-06-02(2)(b)). |
| Baseline statutory share | No child living at execution: intestate-equivalent value, subject to other-parent exception (§ 30.1-06-02(1)(a)). |
| Effect of gifts to existing children | If then-living children received will gifts: equalized share drawn only from those gifts (§ 30.1-06-02(1)(b)(1)–(2)). |
| Property source and abatement | No-child and mistaken-death shares use § 30.1-20-02 order; earlier children's gifts abate ratably (§ 30.1-06-02(1)(b)(4), (4)). |
| Trust and nonprobate reach | Earlier child-gift character preserved where feasible; outside transfer can defeat share under in-lieu test (§ 30.1-06-02(1)(b)(3), (2)(b)). |
Requirements one by one
Child and share
North Dakota's § 30.1-06-02(1) covers a child born or adopted after will execution for whom the will fails to provide. Subsection (3) also covers a living child omitted solely because the testator believed the child dead. If no child lived at execution, the starting value is an intestate-equivalent share. If the will gave property to then-living children, the omitted child's pool is those gifts, equalized as if all omitted later children had been included.
Property used
Earlier child gifts abate ratably, with the testamentary plan preserved as far as possible. Under § 30.1-06-02(4), no-child and mistaken-death shares follow § 30.1-20-02: undisposed property, residuary gifts, general gifts, then specific gifts, subject to the will's intent.
What trips people up
The other-parent exception requires an all-or-substantially-all devise to the omitted child's other parent, who must survive and be entitled to take. Either later-child route also fails if intentional omission appears from the will or an outside transfer was intended in lieu of a will provision under § 30.1-06-02(2).
Common questions
Does an outside gift automatically replace the share? The testator's statements, the transfer amount, or other evidence must show the in-lieu intent (§ 30.1-06-02(2)(b)).
Can the child's interest be a future trust interest? Under § 30.1-06-02(1)(b)(3), the share should match the earlier children's equitable or legal, present or future gift character where feasible.
Statutes and sources
- N.D. Cent. Code §§ 30.1-06-02 and 30.1-20-02. Verbatim current text and official chapter PDF URLs appear in the source fields above.
Source links
Every statute quoted above, linked, with the date we checked it.
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