Also known as: testamentary substitute · nonprobate transfers
Written by attorneys · grounded in primary & secondary sources — see below
A category of donative transfers that shift property or contract rights to a donee at the donor's death outside of probate while the donor retains substantial lifetime control. These arrangements are included in the augmented estate when calculating a surviving spouse's elective share. Valuation occurs at the decedent's death with adjustments for joint interests and insurance proceeds.
Tristan Thompson held a joint bank account with his sister. Upon Tristan's death his surviving spouse Tabitha claims the account as a testamentary substitute in her elective share calculation. The court values Tabitha's fractional interest immediately before death under the applicable statute. Tabitha's share of the account is included in the augmented estate at that pre-death value.
Theodore Tucker left his net probate estate and several nonprobate transfers to his children. His surviving spouse Tyler petitions for an elective share that exceeds the amounts already received. The court first applies the probate estate and specified nonprobate transfers to satisfy the shortfall before reaching other assets. Liability is apportioned among recipients in proportion to their interests.
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After applying the probate estate and certain nonprobate transfers the elective share amount remains unsatisfied. Timothy Tang's remaining nonprobate transfers to others are then reached. The court apportions liability among those recipients in proportion to the value of their interests. Tabitha receives the balance of her elective share from those proportionate contributions.
Property included as a testamentary substitute is valued at the decedent's death. For joint interests the spouse's fractional share is valued immediately before death. Insurance proceeds that would have been included in the spouse's nonprobate transfers are not valued as if the spouse were deceased.
Supporting sources
Amounts in the decedent's net probate estate other than assets passing to the surviving spouse and in specified nonprobate transfers are applied first. Liability is apportioned among recipients in proportion to the value of their interests.
Supporting sources
After applying the probate estate and certain nonprobate transfers the remaining portion of the decedent's nonprobate transfers to others is reached. Liability for the unsatisfied balance is apportioned among those recipients in proportion to the value of their interests.
Supporting sources
…[N.D.C.C. § 30.1-05-03(1)(a)], and that part of the elective-share amount payable from the decedent’s probate estate and nonprobate transfers to others under [N.D.C.C. § 30.1-05-03(2) and (3)] is less than seventy-five thousand dollars, the surviving spouse is entitled to a supplemental elective-share amount equal to seventy-five…