Also known as: elections by spouse · spousal election · elective share
Written by attorneys — see sources below.
A statutory right allowing a surviving spouse to claim a designated portion of the decedent's estate rather than accepting the provisions made by will or other transfers. The claim is calculated against an augmented estate that includes specified probate and nonprobate assets. Amounts already received by the spouse are credited against the share.
Eduardo Enriquez feloniously and intentionally kills his spouse Elise Everly. After her death, Eduardo petitions the probate court for an elective share of her augmented estate. The court denies the petition because the statute bars any benefit, including an elective share, to a person who feloniously and intentionally kills the decedent.
Tyson Hall petitions for an elective share after his spouse Kandi Ann Hall dies intestate. The court grants the petition, confirming that a surviving spouse may claim the elective share even when the decedent left no will.
Kandi Ann Hall and Tyson Hall married on May 23, 2013. They had one minor child together. Kandi Hall had three adult children from a prior relationship, including Brianna McLaen. Kandi Hall died intestate on February 10, 2018. At the time of her death, Kandi Hall owned real property described as Lots 12 and 13 and the South 10 feet of Lot 14, Block 34, First Addition to the City of Forman, Sargent County, North Dakota. She initially acquired an undivided one-fourth interest in the property by a July 18, 2012 Personal Representative’s Deed of Distribution, with her three sisters holding the remaining interests. In 2013, Kandi Hall and her three sisters executed a warranty deed transferring their interests in the property to Kandi Hall and McLaen as joint tenants. Kandi Hall signed the deed as a single woman, and Tyson Hall did not sign the deed. Kandi Hall and Tyson Hall resided in a house on the property at the time of her death. In April 2018 Tyson Hall was appointed personal representative of Kandi Hall’s intestate estate. In June 2018 he petitioned for an elective share of the augmented estate, asserting that the 2013 warranty deed was void because the property was homestead and he had not joined in the conveyance. McLaen opposed the petition, arguing that the deed was valid and that Tyson Hall had already received more than his share. After a hearing the district court granted the petition, found the deed void, included the full value of the property in the augmented estate, and ordered McLaen to issue a quit claim deed transferring her interest to the estate’s personal representative. McLaen appealed the order. After Kandi Hall’s death McLaen paid $3,735.32 in overdue property taxes for 2015 through 2017 and $609.20 for property insurance on the real property. Tyson Hall conceded that the estate should reimburse the taxes but disputed reimbursement for the insurance.
View caseYes. A surviving spouse may claim an elective share of an intestate estate under the governing statute.
Supporting sources
A written agreement signed by the spouse before or after marriage waives the right to an elective share, homestead allowance, exempt property, and family allowance unless the agreement provides otherwise.
Supporting sources
No. These allowances are payable in addition to the elective share and are not charged against it.
Supporting sources
The spouse forfeits the elective share and all other benefits under the article because the statute bars any benefit to a person who feloniously and intentionally kills the decedent.
Supporting sources
…Opinion of the Court by Tufte, Justice. [¶1] Brianna McLaen appeals from an order granting Tyson Hall’s petition for an elective share of the Estate of Kandi Ann Hall. McLaen argues the district court erred by determining Tyson Hall could claim an elective share of Kandi Hall’s intestate estate and by deciding a warranty…