Written by attorneys · grounded in primary & secondary sources — see below
A statutory construct that aggregates the value of a decedent's net probate estate with specified nonprobate transfers made by the decedent and certain assets owned by the surviving spouse. The construct supplies the base for calculating a surviving spouse's elective-share amount as a percentage of the marital-property portion of the total. Overlapping inclusions are resolved by selecting the valuation provision that produces the greatest amount.
Sources & Authorities
How it applies
Common Examples
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Spouse Elects Against Joint Accounts
Aaron Adams died domiciled in a UPC state survived by his wife Adrian Aguilar. During the marriage Aaron transferred the bulk of his investment portfolio into joint accounts with rights of survivorship naming his adult son from a prior marriage. Adrian filed a timely petition asserting her right to an elective share. The court included the joint accounts in the augmented estate because Aaron retained check-writing authority until death, allowing Adrian to claim fifty percent of the marital-property portion.
Late Petition Excludes Nonprobate Assets
Austin Abbott died leaving a will that was probated six months after his death. His surviving spouse Albert Allen filed a petition for elective share ten months after death and gave notice only to the personal representative. Because the filing occurred more than nine months after death, the court excluded Austin's nonprobate transfers from the augmented estate when computing Albert's elective-share amount.
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Uniform Acts
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Common questions
Frequently Asked
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What assets are added to a decedent's probate estate to form the augmented estate?+
The augmented estate includes the decedent's net probate estate, nonprobate transfers to others, nonprobate transfers to the surviving spouse, and the surviving spouse's own property and nonprobate transfers to others. Overlapping provisions are resolved by selecting the valuation that yields the greatest amount.
Supporting sources
How does the length of the marriage affect the elective share taken from the augmented estate?+
The surviving spouse receives a percentage of the marital-property portion of the augmented estate. The percentage rises with the duration of the marriage and reaches a maximum of fifty percent once the marriage has lasted fifteen years or longer.
Supporting sources
When must a surviving spouse file the petition to preserve nonprobate transfers inside the augmented estate?+
The petition must be filed within nine months after the decedent's death or within six months after probate of the will, whichever period expires later. Filing more than nine months after death excludes nonprobate transfers to others from the augmented estate for purposes of computing the elective share.
Supporting sources
931 N.W.2d 482 (N.D. 2019)Wills Trusts and Estates
…personal representative of Kandi Hall’s intestateestate. In June 2018, Tyson Hall petitioned for an elective share of the augmented estate under N.D.C.C. ch. 30.1-05. Tyson Hall argued Kandi Hall owned property worth $62,468.10 at the time of her death, including the real property. He also argued the 2013 warranty deed…