North Dakota law provides that a surviving spouse has a right to share in his or her deceased spouse’s estate regardless of what the will states. In fact, if a surviving spouse is not satisfied with the will’s distribution, the surviving spouse has a right of election to elect against the will and take an elective share of the decedent’s estate.
A surviving spouse may decide to exercise his or her right of election to take an elective share equal to 50% of the “augmented estate.” The augmented estate consists of the sum of the gross estate less the expense of funeral and estate administration, homestead allowance, exemptions, family allowance, and enforceable claims. Please note that the augmented estate does not include pensions or life insurance payable to someone other than the surviving spouse. This amount does include, however, the value of any property the surviving spouse would have received from a right of survivorship with the deceased spouse.
If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse’s homestead allowance, exempt property, and family allowance, if any, are not charged against, but are in addition to, the elective-share and supplemental elective-share amounts. N.D. Cent. Code, § 30.1-05-01.
In order to exercise the right of election, a surviving spouse must file a petition within nine months after the date of the decedent’s death or within six months after probate of the will.