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North Dakota Surviving Spouse Rights
Pillar GuideNorth Dakota23 min read

North Dakota Surviving Spouse Rights

A North Dakota spouse can elect 50% of the augmented estate, holds a homestead estate in the home, and takes allowances on top.

By Settled Editorial

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A North Dakota will cannot leave a surviving spouse with nothing if the spouse chooses to object. NDCC 30.1-05-01(1) gives the spouse of a person who died domiciled in North Dakota the right to elect 50% of the augmented estate instead of taking under the will. That figure is flat: North Dakota has no length-of-marriage schedule. The spouse files a petition within 9 months after the death or within 6 months after the will is probated, whichever is later, and three more protections sit on top of the share: the homestead estate in the family home, up to $15,000 of exempt property, and a family allowance during administration.

This page covers every protection a North Dakota surviving spouse has, with the section that creates each one. The spouse's share when there is no will at all has its own page, North Dakota intestate succession, and this guide names it in one short section.

The Protections at a Glance

Here is the full list, with the statute behind each row.

ProtectionWhat it gives the spouseStatute
Elective share50% of the augmented estate, claimed by petitionNDCC 30.1-05-01(1)
Supplemental elective shareA top-up to $75,000 when credits fall shortNDCC 30.1-05-01(2)
Homestead estatePossession, use and income of the home for life or until remarriageNDCC 30-16-01(2), 30-16-02
Homestead exemptionThe home, up to $150,000 over liens, shielded from most of the decedent's debtsNDCC 47-18-01, 30-16-03
Exempt propertyUp to $15,000 in household furniture, vehicles, furnishings, appliances and personal effectsNDCC 30.1-07-01
Family allowanceSupport during administration; the personal representative can set up to $27,000 lump sum or $2,250 a monthNDCC 30.1-07-02, 30.1-07-03(1)
Intestate shareThe whole estate, or $300,000, $225,000 or $150,000 plus a fractionNDCC 30.1-04-02
Premarital willAt least an intestate share when the will predates the marriage, with exceptionsNDCC 30.1-06-01
Priority to serveSecond in line as personal representative if a devisee, fourth if notNDCC 30.1-13-03(1)

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The Elective Share Is Half of the Augmented Estate

The elective share lets a spouse who is unhappy with the will take a fixed fraction of a wider pool instead. Under NDCC 30.1-05-01(1), that fraction is fifty percent of the augmented estate.

Many other states that use the Uniform Probate Code tie the share to the length of the marriage, starting at a small percentage in the first year and reaching the full share only after 15 years. North Dakota amended its section in 2009 (House Bill 1072) and now applies one number to every marriage. A search result or article that prints a sliding scale for North Dakota is describing another state's law.

The share only matters if the spouse claims it. A spouse who is happy with the will, or who receives most of the estate anyway, simply does nothing and takes under the will.

What the Augmented Estate Counts

The augmented estate is defined in NDCC 30.1-05-02(2). It adds four things together.

  1. The probate estate, reduced by funeral and administration expenses, the homestead as defined in 47-18-01, family allowances, exempt property and enforceable claims (subdivision a).
  2. The decedent's nonprobate transfers to others (subdivision b). This includes a joint tenancy share that passed by survivorship to someone other than the spouse, POD and TOD accounts, property the decedent could take back through a retained power, and certain gifts made during the marriage in the two years before death, to the extent the gifts to any one person in either year exceeded $10,000.
  3. Nonprobate transfers to the spouse (subdivision c), such as the decedent's share of joint property that passed to the spouse and life insurance the decedent owned that paid the spouse.
  4. The spouse's own property (subdivision d), including the spouse's share of joint accounts and property that passed to the spouse because of the death.

That last line is the part people miss. The surviving spouse's own assets go into the pool and then count against the 50% share.

Three Exclusions That Change the Arithmetic

NDCC 30.1-05-02(3) takes three kinds of property out of the decedent's nonprobate transfers to others:

  • Transfers for full value. Property the decedent sold for adequate and full consideration.
  • Transfers the spouse joined or consented to in writing. If the spouse signed a written joinder or consent, that property stays out of the pool.
  • Life insurance and retirement plans payable to someone else. Life insurance, accident insurance, pension, profit-sharing, retirement and other benefit plans payable to anyone other than the surviving spouse or the estate are excluded.

The third exclusion is a North Dakota choice worth knowing. A large 401(k) or life insurance policy naming the decedent's children does not enter the augmented estate, so it generally sits outside the elective-share calculation.

How the Share Gets Paid

NDCC 30.1-05-03 sets the order in which assets satisfy the share.

  • First, what the spouse already receives: probate property passing to the spouse under the will or by intestacy, nonprobate transfers to the spouse, and the spouse's own property under subdivision d.
  • Next, the probate estate and most nonprobate transfers to others, with the unpaid balance apportioned among their recipients in proportion to what each received.
  • Last, the remaining nonprobate transfers to others, which are the lifetime gifts from the two years before death.

A simplified example that ignores expenses and claims shows how this works. A husband dies with a $400,000 probate estate and a will leaving all of it to his children from a first marriage. His wife owns $200,000 in her own name. The augmented estate is $600,000, so the elective share is $300,000. Her own $200,000 counts first, which leaves $100,000 to come from the children's inheritance.

Under NDCC 30.1-05-04, only the original recipients of the nonprobate transfers, and their donees to the extent they still hold the property, must contribute. A recipient can give back the property or pay its value.

The $75,000 Supplemental Amount

NDCC 30.1-05-01(2) sets a floor. If the spouse's own property, what passes to the spouse, and the elective share payable from the probate estate and nonprobate transfers add up to less than $75,000, the spouse is entitled to a supplemental elective-share amount equal to $75,000 minus that sum. It comes from the same sources, in the same order, as the rest of the share.

The Allowances Come on Top of the Share

NDCC 30.1-05-01(3) says that when the spouse elects, the homestead allowance, exempt property and family allowance are not charged against the elective-share and supplemental amounts. They are paid in addition.

  • Exempt property. NDCC 30.1-07-01 gives the spouse up to $15,000 above any security interests in household furniture, automobiles, furnishings, appliances and personal effects. If the estate holds less, other assets make up the difference. These rights have priority over all claims against the estate.
  • Family allowance. NDCC 30.1-07-02 grants the spouse and dependent children a reasonable allowance for their maintenance during administration. It may not run past one year if the estate cannot pay allowed claims. Under 30.1-07-03(1), the personal representative can set it at a lump sum up to $27,000 or installments up to $2,250 a month for one year, and anyone aggrieved can ask the court for a different amount.

North Dakota has no separate dollar homestead allowance. Chapter 30.1-07 still uses the words "homestead allowance", but no section in it sets an amount. The spouse's protection in the home comes from the homestead and the homestead estate instead. The full rules for claiming each one are on exempt property and the homestead and the family allowance.

The Homestead Estate Keeps the Spouse in the Home

This is the protection most North Dakota spouses rely on, and it applies whether or not the spouse elects.

NDCC 30-16-01(2) defines the homestead estate as "the right to the possession, use, control, income, and rents of the real property held or occupied by the decedent as a homestead at death." Under NDCC 30-16-02, it goes to the surviving spouse for life or until the spouse remarries. If there is no spouse, or when the spouse dies, it passes to the decedent's minor children until the youngest reaches majority.

Here is what that means for a family:

  • A will cannot take it away. NDCC 47-18-29 lets an owner leave the homestead to anyone, but only subject to the homestead estate and the payment of debts. A house left to the children still stays in the spouse's use for life or until remarriage.
  • Most creditors cannot reach it. NDCC 30-16-03 says the homestead is not subject to the decedent's debts except the liabilities in 47-18-04: mechanics' liens for work on the home, a mortgage both spouses signed, purchase-money debt and taxes, and value above the $150,000 exemption. NDCC 30-16-04 adds claims for county general assistance, general assistance from the Department of Health and Human Services, and certain state old-age and disability assistance.
  • The value cap is $150,000 over liens. NDCC 47-18-01 limits the homestead to the land and dwelling where the owner lived, not exceeding $150,000 in value above liens and encumbrances. The personal representative appraises the home and reports on it with the inventory under 30-16-05, and value above the cap can go to pay debts after other property runs out (30-16-09).

The house itself still passes to whoever the will or the intestacy rules name. The spouse holds the right to live in it and collect its income; the heirs or devisees hold the property subject to that right.

The Deadline Has Two Limbs, and Waiting Costs the Nonprobate Assets

NDCC 30.1-05-05(1) requires the spouse to file a petition for the elective share in the court, and mail or deliver it to the personal representative if one has been appointed, within the later of:

  • 9 months after the date of death, or
  • 6 months after the will is probated.

The spouse must also serve a copy on the persons interested in the estate and on the recipients whose shares the election could reduce, with written notice of the hearing.

Here is the catch. A petition filed more than 9 months after the death leaves the decedent's nonprobate transfers to others out of the calculation. Filing inside 9 months keeps a TOD account or a joint account that went to the children in the pool. So does an extension granted on a petition filed inside that window under 30.1-05-05(2), after notice to everyone interested in those transfers.

Under 30.1-05-05(3), the spouse can withdraw the demand at any time before the court's final determination. After notice and hearing, the court fixes the amounts and orders payment, and under 30.1-05-05(6) the court forwards a copy of the order to the tax commissioner.

Land that passed by a transfer on death deed has a separate link to the allowances, covered under a TOD deed and the spouse. NDCC 30.1-32.1-12 lets the estate reach TOD property to pay a statutory allowance to a surviving spouse when the probate estate falls short, in a proceeding started within 18 months after the death.

Who May Elect

The right is personal. NDCC 30.1-05-06(1) allows an election only by a spouse who is living when the petition is filed. A conservator, guardian or agent under a power of attorney may elect on the spouse's behalf.

When the election is made for an incapacitated spouse, 30.1-05-06(2) directs the court to set the share aside in a trust for the spouse's support, managed by a court-appointed trustee. An election by an agent under a durable power of attorney is presumed to be for an incapacitated spouse. When the spouse dies, what is left goes under the residuary clause of the first spouse's will, or to that spouse's heirs.

Giving Up the Right in a Written Agreement

North Dakota repealed its Uniform Probate Code waiver section, NDCC 30.1-05-07, in 2013 (House Bill 1128, S.L. ch. 121). The same act created chapter 14-03.2, which governs premarital agreements and marital agreements.

Under NDCC 14-03.2-01, those agreements can affirm, modify or waive a "right to property ... at ... death of a spouse". Two rules decide whether one holds up:

  • Form. NDCC 14-03.2-05 requires the agreement to be in a record signed by both parties. It is enforceable without consideration.
  • Fairness. NDCC 14-03.2-08(1) makes an agreement unenforceable if the spouse challenging it proves that consent was involuntary or under duress, that there was no access to independent legal representation, that the agreement lacked the statutory notice of waiver of rights or a plain-language explanation (unless the spouse had a lawyer), or that there was no adequate financial disclosure before signing. A court may also refuse to enforce a term that was unconscionable when signed.

Whether a particular agreement gives up the elective share depends on its wording, and a licensed North Dakota attorney is the person who reads it against these rules.

What a Spouse Takes With No Will

If there is no will, the spouse takes an intestate share instead of electing. Under NDCC 30.1-04-02, that is the whole estate when every descendant of the decedent is also the spouse's and the spouse has no other descendants, or when no descendant or parent survives. Otherwise it is $300,000 plus three-fourths of the rest (a parent survives, no descendant), $225,000 plus one-half (the spouse has descendants from another relationship), or $150,000 plus one-half (the decedent has descendants who are not the spouse's). The full tiers are on the spouse's share without a will.

Married After the Will Was Signed

A will written before the marriage does not simply cut out the new spouse. NDCC 30.1-06-01(1) gives a spouse who married the testator after the will was signed at least the intestate share of the part of the estate not left to the testator's children from before the marriage (or their descendants). The rule does not apply if the will was made in contemplation of the marriage, if it says it stays effective despite a later marriage, or if the testator provided for the spouse outside the will in place of a gift under it.

Who Counts as a Surviving Spouse

A divorced or annulled spouse is not a surviving spouse unless the two remarried and were married at the death, under NDCC 30.1-10-02(1). A decree of separation that leaves the marriage in place is not a divorce for this purpose. Subsection 2 also excludes, for chapters 30.1-04 through 30.1-07 and for priority to serve, a spouse who was a party to a valid proceeding ending in an order that purported to end all marital property rights.

A same-sex spouse has every right on this page. 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).

Serving as Personal Representative

The spouse ranks high for appointment. NDCC 30.1-13-03(1) puts a person named in the will first, then a surviving spouse who is also a devisee, then other devisees, then the surviving spouse, then other heirs. A spouse with priority can also nominate someone else to serve under 30.1-13-03(3). What the job involves is covered in North Dakota executor duties.

Medicaid Recovery Waits for the Spouse

North Dakota's Medicaid estate claim does not come due while the spouse is alive. NDCC 50-24.1-07(2)(a) says a claim may not be required to be paid, and interest may not begin to accrue, during the lifetime of the decedent's surviving spouse, or while a child under 21 or a blind or permanently and totally disabled child survives.

The claim does not disappear. Subsection 1 extends recovery to the death of the spouse of the deceased recipient, and subsection 5 presumes that every asset in the spouse's estate is one in which the recipient had an interest. Every personal representative must also send the department a copy of the petition or application opening probate, with the names of the heirs and devisees, under 50-24.1-07(3).

Dates and Records the Statutes Attach Weight To

These are the items the sections above tie to a date or a consequence. How they apply to one family is a question for a licensed North Dakota attorney.

  1. The 9-month date. NDCC 30.1-05-05 measures the nonprobate-asset rule from the date of death, so that date carries weight.
  2. What passed outside probate. Joint accounts, POD and TOD accounts, TOD deeds, and lifetime gifts in the last two years all feed the augmented estate.
  3. Any premarital or marital agreement. Under chapter 14-03.2, an agreement can affect whether an election is available at all.
  4. Exempt property and the family allowance. Chapter 30.1-07 runs these through the personal representative, and they exist whether or not a spouse elects.
  5. The homestead in the inventory. NDCC 30-16-05 has the personal representative appraise the homestead and annex a report on it to the inventory.

The North Dakota probate guide explains how an estate opens in the district court, and North Dakota creditor claims explains which debts come ahead of the heirs.

When to Bring in a North Dakota Attorney

Most spouses never elect, because the will already leaves them the estate. Talk with a licensed North Dakota attorney when the will leaves the spouse little, when much of the decedent's wealth passed by joint title, POD or TOD registration or a TOD deed, when the spouse owns a large share of the couple's property in their own name that will count against the share, when a premarital or marital agreement exists, or when the 9-month mark is close. Those are the situations where an election is most likely to change who receives what.

Common Questions

Can a North Dakota will disinherit a surviving spouse?

Not completely. NDCC 30.1-05-01(1) gives the surviving spouse of a person who died domiciled in North Dakota the right to elect an elective share equal to 50% of the augmented estate instead of taking what the will leaves. The spouse also keeps the homestead estate in the family home for life or until remarriage under NDCC 30-16-02, up to $15,000 of exempt property under 30.1-07-01, and a family allowance under 30.1-07-02. The election has to be claimed by petition within the deadline in 30.1-05-05.

How much is the North Dakota elective share?

A flat 50% of the augmented estate, under NDCC 30.1-05-01(1). North Dakota does not scale the share by the length of the marriage, so a two-year marriage and a forty-year marriage start from the same percentage. What the spouse already owns and what already passes to the spouse count toward the 50% first under 30.1-05-03(1). If those credits leave the spouse with less than $75,000, 30.1-05-01(2) adds a supplemental amount that brings the total up to $75,000.

What is the deadline to file for a North Dakota elective share?

NDCC 30.1-05-05(1) requires a petition filed in the court, and mailed or delivered to the personal representative if there is one, within 9 months after the date of death or within 6 months after the will is probated, whichever limit expires later. A petition filed more than 9 months after the death loses the decedent's nonprobate transfers to others from the calculation, unless the spouse asked the court for an extension inside those 9 months under 30.1-05-05(2).

Does the surviving spouse get to stay in the house in North Dakota?

Yes, through the homestead estate. NDCC 30-16-01(2) defines it as the right to the possession, use, control, income and rents of the real property the decedent held or occupied as a homestead at death, and 30-16-02 sets it over to the surviving spouse for life or until the spouse remarries. A will can leave the house to someone else, but under NDCC 47-18-29 the devise takes effect subject to the homestead estate.

Do the allowances come on top of the North Dakota elective share?

Yes. NDCC 30.1-05-01(3) says that when the right of election is exercised, the surviving spouse's homestead allowance, exempt property and family allowance are not charged against the elective-share and supplemental amounts but are in addition to them. Exempt property is up to $15,000 under 30.1-07-01, and the personal representative can set the family allowance at up to $27,000 in a lump sum or $2,250 a month for one year under 30.1-07-03(1).

Can North Dakota Medicaid recover from the estate while the spouse is alive?

No payment is due while the spouse lives. NDCC 50-24.1-07(2)(a) says a Medicaid claim may not be required to be paid, and interest may not begin to accrue, during the lifetime of the decedent's surviving spouse. The same section lets the department claim against the spouse's estate after the spouse dies, and 50-24.1-07(5) presumes that every asset in the spouse's estate is one in which the recipient had an interest.

Related Guides

This guide organizes the statutes 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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