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North Dakota Intestate Succession
Pillar GuideNorth Dakota17 min read

North Dakota Intestate Succession

Who inherits without a will in North Dakota: the spouse's share under NDCC 30.1-04-02, then other heirs by per stirpes representation.

By Settled Editorial

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When a North Dakota resident dies without a will, chapter 30.1-04 of the North Dakota Century Code decides who inherits. The surviving spouse takes the whole estate in the simplest families. In every other family the spouse takes a fixed first amount of $300,000, $225,000 or $150,000, plus a fraction of what is left. Everything else passes to the heirs in NDCC 30.1-04-03, split per stirpes, and only when no one on that list survives does the estate go to the state for the common schools.

Two North Dakota rules trip up summaries copied from other states. "By representation" here means per stirpes under NDCC 30.1-09.1-09(3), so each family line keeps its own share. And before the state takes anything, 30.1-04-03(6) sends the estate to the descendants of a spouse who died earlier, which can make stepchildren heirs.

This page covers the distribution question: who gets what. For how the estate moves through the district court, read how the estate is administered.

What Intestate Succession Covers

Dying without a will is called dying "intestate." Under NDCC 30.1-04-01(1), any part of an estate that a will does not effectively dispose of passes to the decedent's heirs under Title 30.1. A will can also exclude or limit a person or a class of relatives. Under 30.1-04-01(2), the excluded share then passes as if that person had disclaimed it.

These rules reach probate property only. Assets that name their own taker skip them:

  • retirement accounts and life insurance with a named beneficiary
  • joint tenancy property with right of survivorship
  • payable-on-death and transfer-on-death bank and brokerage registrations
  • North Dakota real estate under a recorded transfer on death deed
  • anything already titled to a trust

A policy that names a beneficiary pays that beneficiary no matter who the heirs are.

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Who Counts as the Surviving Spouse

A North Dakota marriage needs a license. NDCC 14-03-10 says no one may solemnize a marriage until the couple produces a license issued by a county recorder within the prior 60 days.

A same-sex spouse inherits exactly as any other spouse does. The printed text of NDCC 14-03-01 still describes marriage as between a man and a woman, but the United States Supreme Court struck down that kind of limit in Obergefell v. Hodges (2015), and the shares below apply to every lawful marriage.

A former spouse does not qualify. Under NDCC 30.1-10-02(1), a person who is divorced from the decedent, or whose marriage was annulled, is not a surviving spouse unless the two remarried and were married at the death. A decree of separation that leaves the marriage in place is not a divorce for this purpose. Subsection 2 also excludes a spouse who was a party to a valid proceeding ending in an order that purported to end all marital property rights.

North Dakota is not a community-property state. Property titled in the decedent's name alone is part of the decedent's estate, and the spouse's claim to it comes through the shares below and the protections listed later on this page.

The Surviving Spouse Share

NDCC 30.1-04-02 sets four outcomes. Which one applies turns on two facts: whether the decedent left descendants, and whose descendants they are.

Family situationSpouse receivesStatute
No descendant and no parent of the decedent survivesThe entire intestate estate30.1-04-02(1)(a)
Every surviving descendant of the decedent is also the spouse's, and the spouse has no other surviving descendantThe entire intestate estate30.1-04-02(1)(b)
No descendant survives, but a parent of the decedent doesThe first $300,000, plus 3/4 of any balance30.1-04-02(2)
Every surviving descendant is also the spouse's, but the spouse has a surviving descendant who is not the decedent'sThe first $225,000, plus 1/2 of any balance30.1-04-02(3)
One or more of the decedent's surviving descendants are not the spouse'sThe first $150,000, plus 1/2 of any balance30.1-04-02(4)

The Legislative Assembly last amended this section in 2009 (HB 1072, S.L. ch. 283). The dollar figures are flat amounts in the statute text, with no inflation table to look up.

Three things follow from that table.

Parents can inherit alongside a spouse. A married person who dies with no children but a living mother or father does not leave everything to the spouse. The spouse takes $300,000 and three-fourths of the rest, and the parent or parents take the remaining fourth.

The spouse's own children from another relationship matter. Say a husband and wife share all of the husband's children, but the wife also has a child from an earlier marriage. Her share drops from everything to $225,000 plus half. The other half goes to the husband's children.

A child the decedent had with someone else cuts the share furthest. One child from an earlier relationship is enough to put the spouse on the $150,000 tier.

Three worked examples

Say the intestate estate is worth $500,000 after debts and expenses.

  • No children, one parent living. The spouse takes $300,000 plus 3/4 of the remaining $200,000, which is $150,000, for a total of $450,000. The parent takes $50,000.
  • Shared children, and the spouse has a child from a prior marriage. The spouse takes $225,000 plus 1/2 of the remaining $275,000, which is $137,500, for a total of $362,500. The decedent's descendants split $137,500.
  • The decedent has a child from a prior relationship. The spouse takes $150,000 plus 1/2 of the remaining $350,000, which is $175,000, for a total of $325,000. The decedent's descendants split $175,000.

If the estate is smaller than the first amount, the spouse takes all of it. A $180,000 estate on the $225,000 tier leaves nothing for anyone else.

The intestate share is only one layer. Exempt property, the homestead estate and the family allowance come on top, and the elective share applies when a will exists. See the surviving spouse's other rights.

Who Inherits When There Is No Spouse, or After the Spouse's Share

NDCC 30.1-04-03 sends whatever the spouse does not take, or the whole estate when no spouse survives, down a fixed order. Each class has to be empty before the next one inherits:

  1. Descendants of the decedent, by representation.
  2. Parents, equally if both survive, or the survivor if only one does.
  3. Descendants of the parents, meaning brothers and sisters and then nieces and nephews, by representation.
  4. Grandparents and their descendants. Half goes to the paternal side and half to the maternal side. On each side the grandparents take equally if both survive, the survivor takes if one does, and if both are gone their descendants take by representation. That reaches aunts, uncles and cousins.
  5. One side only. If no grandparent or descendant of a grandparent survives on one side, subsection 5 gives the whole estate to the relatives on the other side, in the same manner.
  6. Descendants of a deceased spouse. If no spouse, descendant, parent, descendant of a parent, grandparent or descendant of a grandparent survives, the estate goes to the descendants of a spouse who died before the decedent, by representation. With more than one deceased spouse, the estate splits into equal shares, one per deceased spouse, and each share goes to that spouse's descendants.

That sixth class is how a stepchild can inherit in North Dakota. A stepchild who was never adopted takes nothing while any blood relative in classes one through five survives. Once those classes are empty, the children of a late spouse come ahead of the state.

North Dakota stops there. The statute has no catch-all for the nearest relative of any degree, so kin more distant than the grandparents' descendants, such as a great-aunt or a great-grandparent's other descendants, do not inherit under 30.1-04-03.

How "By Representation" Works: Per Stirpes

Section 30.1-04-06, titled "Representation," is only a repeal note (S.L. 1995, ch. 322, § 26). The definition now lives in NDCC 30.1-09.1-09(3). When a statute calls for property to pass "by representation" or "per stirpes," the estate divides into equal shares, one for each surviving child and one for each deceased child who left surviving descendants. Each surviving child takes one share. Each deceased child's share divides the same way among that child's own descendants, generation by generation, until every share lands with a living person.

Subsection 4 adds two limits. A person who died leaving no descendants is ignored, and a person whose own parent is still alive and in the line takes nothing.

Here is the difference that matters. A widower dies without a will. Both of his sons died before him. The first son left one child and the second son left three.

  • North Dakota, per stirpes: the estate splits at the sons' level. The first son's only child takes 1/2. The second son's three children split the other half, 1/6 each.
  • Per capita at each generation, the method in 30.1-09.1-09(2): the four grandchildren would share equally, 1/4 each.

North Dakota intestacy uses the first method. Subsection 2 applies only when a will or trust calls for "per capita at each generation," so a summary built on the Uniform Probate Code's 1990 intestacy text will give the wrong fractions here. Subsection 3 applies the same per stirpes method to nieces and nephews, to the grandparents' descendants, and to a deceased spouse's descendants.

The 120-Hour Survival Rule

Under NDCC 30.1-04-04(1)(a), an heir who does not outlive the decedent by 120 hours, five full days, is treated as having died first. The section applies to intestate succession, exempt property and the homestead allowance. Survival for that period has to be shown by clear and convincing evidence, or the heir is deemed to have failed it.

The rule decides who inherits when a husband and wife die in the same accident. Under 30.1-04-04(2) it does not apply when using it would send the estate to the state under 30.1-04-05.

A child in gestation at the death counts as living under 30.1-04-04(1)(b) if the child lives 120 hours or more after birth.

Rules That Change Who Counts as an Heir

Half blood. NDCC 30.1-04-07 is one sentence: relatives of the half blood inherit the same share as relatives of the whole blood. A half brother takes what a full brother takes.

Two lines of relationship. Under NDCC 30.1-04-03.1, a person related to the decedent through two lines takes one share only, the larger of the two.

Children born outside marriage. NDCC 30.1-04-16 creates a parent-child relationship between a child and the child's genetic parents regardless of their marital status.

Adopted children. Under NDCC 30.1-04-17, an adoptee is the child of the adoptive parents. Under 30.1-04-18, the tie to the genetic parents ends, with exceptions. When the spouse of one genetic parent adopts, the child keeps inheritance rights through both genetic parents. Adoption by a relative, or adoption after both genetic parents have died, also keeps the child's right to inherit through them.

Parents who did not act as parents. NDCC 30.1-04-09 bars a parent from inheriting from or through a child when the parent's rights were terminated and never judicially restored. It also bars a parent of a child who died before 18 when clear and convincing evidence shows the parent's rights could have been terminated for nonsupport, abandonment, abuse or neglect. A barred parent is treated as having died before the child.

Advancements. Under NDCC 30.1-04-10, a lifetime gift counts against an heir's share only if the decedent declared it an advancement in a contemporaneous writing or the heir acknowledged it in writing. Without that paper, gifts made during life change nothing.

Debts owed to the decedent. NDCC 30.1-04-11 charges a debt against the debtor's own share only, and drops it if the debtor died first.

Citizenship. NDCC 30.1-04-12 bars no one from inheriting because the heir, or a person the heir claims through, is or was an alien.

Dower and curtesy. NDCC 30.1-04-13 abolishes both.

Homicide. Under NDCC 30.1-10-03(2), a person who intentionally and feloniously kills the decedent forfeits the intestate share, and the estate passes as if the killer had disclaimed it. A conviction settles the question. Without one, 30.1-10-03(7) lets the court decide it on a petition by the preponderance of the evidence.

Family Protections Sit Beside the Intestate Share

North Dakota has no dollar homestead allowance of the kind some neighbors use. It protects the family through three other rights, and each comes in addition to the intestate share rather than being counted against it:

  • Exempt property up to $15,000 under NDCC 30.1-07-01, in household furniture, automobiles, furnishings, appliances and personal effects, measured above any security interests. With no spouse, the minor and dependent children share it. The section says these rights are in addition to any share passing by intestate succession.
  • The homestead estate under NDCC 30-16-02. The right to live in, use and collect the rents of the family home goes to the surviving spouse for life or until remarriage, and then to minor children until the youngest reaches majority.
  • A family allowance under NDCC 30.1-07-02, for support during administration. Under 30.1-07-03 the personal representative can set it at a lump sum up to $27,000 or up to $2,250 a month for one year, and the court can order a different amount.

See North Dakota exempt property and the family allowance for how each one is claimed.

When No Heir Survives

Because the list ends with a late spouse's descendants, escheat is possible when a person dies with no close family. If no taker exists, NDCC 30.1-04-05 sends the intestate estate to the state of North Dakota for the support of the common schools. The attorney general or the state's attorney can sue in the district court of the county where the property sits to recover it or sell it.

How an Intestate Estate Gets Settled

The statutes name the heirs. Someone still has to collect the property and hand it over.

In North Dakota, the district court hears probate and determines heirs under NDCC 30.1-02-02. Find the clerk in the list of North Dakota probate courts by county. When there is no will, NDCC 30.1-13-03(1) sets the order of priority to serve as personal representative: the surviving spouse, then the other heirs, then the decedent's guardian or conservator, then a trust company, and 45 days after the death any creditor. The personal representative collects the assets, gives notice, pays allowed claims, and distributes the shares above.

Plenty of intestate estates never open a court file. Under NDCC 30.1-23-01, as amended in 2025 (HB 1224, S.L. ch. 319), a successor can collect personal property with a signed affidavit once 30 days have passed since the death, if the entire estate, wherever located and less liens and encumbrances, is worth $100,000 or less and no application or petition to appoint a personal representative is pending or granted. The affidavit moves personal property, not land. See collecting a small estate without court for the full test.

To see these shares applied to one family, the North Dakota inheritance calculator asks who survived and splits the estate under the same intestacy rules.

When to Talk to a Lawyer

Many North Dakota intestate estates divide straight off the statute. Consider a licensed North Dakota attorney when:

  • a blended family puts the spouse on the $225,000 or $150,000 tier
  • a parent survives a married decedent with no children
  • grandchildren from different branches need the per stirpes split worked out
  • deaths close together raise a 120-hour survival question
  • the estate may pass to a late spouse's descendants under 30.1-04-03(6)
  • a parental bar, an advancement writing, or a homicide forfeiture petition is in play
  • the family home carries a homestead estate for a spouse or minor children

If these default shares would send property somewhere the owner would not choose, the answer is a will. Start with making a valid will.

This guide organizes the statutory shares and the questions worth asking. Confirm anything that affects a particular estate with the clerk of district court handling it or a licensed North Dakota attorney.

Sources:

It is not legal advice.

Information current as of September 28, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in North Dakota can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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