Also known as: elective share amount · elective-share amounts · elective share · spousal elective share
Written by attorneys — see sources below.
The statutory amount to which a surviving spouse is entitled upon electing against the decedent's will or other disposition. The amount equals fifty percent of the value of the marital-property portion of the augmented estate, with a possible supplemental payment to reach a statutory floor when the base calculation falls short.
Emma Erickson intentionally kills her husband to accelerate inheritance. She later petitions the probate court for an elective-share amount from his augmented estate. The court denies the petition because the killing causes forfeiture of all benefits under the elective-share provisions, treating the share as disclaimed.
Evelyn Ellison's husband dies domiciled in the state, leaving an augmented estate whose marital-property portion yields an elective-share calculation below the statutory floor. She files a timely petition. The court awards the base amount plus a supplemental payment drawn from the probate estate and nonprobate recipients to reach the required minimum.
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 caseA signed written agreement waiving all rights in the property or estate of the other spouse operates as a waiver of the elective-share amount unless the agreement provides otherwise. Courts examine whether the waiver was knowing and voluntary, including whether full financial disclosure occurred.
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These allowances are payable in addition to the elective-share amount and are not charged against it. The surviving spouse may receive both the fractional share of the augmented estate and the fixed allowances without reduction of one by the other.
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Nonprobate transfers are excluded from the augmented estate used to compute the elective-share amount. The petition may still proceed as to probate assets if filed within the later of nine months after death or six months after probate, but the augmented estate calculation is limited accordingly.
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The value of any constitutional homestead interest already held by the surviving spouse is charged against the statutory homestead allowance. The court reduces the allowance payable from other estate assets by the value of that interest.
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…property, and family allowance, if any, are not charged against, but are in addition to, the elective-share and supplemental elective-share amounts. [¶10] Nothing in the plain language of the statute limits the right of election to testate cases where there is a will. Section 30.1-05-01, N.D.C.C., is based on Uniform Probate Code §…