North Dakota Intestate Succession – Historical

North Dakota Intestate Succession – Historical – Share of a Surviving Spouse

The North Dakota inheritance share – the North Dakota intestate estate share – passing to a Surviving Spouse, will vary depending on the date of the decedent’s death, and the identity of the decedent’s relatives, and perhaps others who survived the decedent’s death.

North Dakota Intestate Succession – Historical – Share of Persons Other Than a Surviving Spouse

The North Dakota inheritance share – the North Dakota intestate estate share – passing to persons other than a surviving spouse:

will be determined by reference to the amount passing to the surviving spouse, if any, and

will depend upon the identity of the relatives of the decedent, and sometimes the decedent’s surviving spouse(s), who survive the decedent’s death.

North Dakota Intestate Succession – Historical Provisions

The share of the North Dakota intestate estate passing to a surviving spouse and others has varied considerably over the years.

a. Date of the Decedent’s Death – Prior to July 1, 1975

Prior to the adoption of the Uniform Probate Code in North Dakota on July 1, 1975, a surviving spouse, and the surviving descendants or parents of the decedent, would share the North Dakota intestate estate in amounts and percentages that varied depending on the date of the decedent’s death, and the identity of the survivors.

Frandson v. Casey

In Frandson v. Casey, 73 N.W.2d 436 (N.D. 1955), the North Dakota Supreme Court identified the division of the intestate estate with respect to a decedent who died in 1932, by referencing the intestacy statute in effect in 1943:

At the time of the death of George W. Hudson, on December 7, 1932, he was the record owner of the above described land. Under the statute of succession of our state, Section 56-01-04, NDRC 1943, upon the death of George W. Hudson,

his widow succeeded to a one-third interest in the land owned by him in North Dakota and

the other answering defendants, his son and daughters, succeeded to a two-thirds interest therein, or a one-fourth interest in the two-thirds interest, or one-sixth interest therein to each.

Frandson v. Casey, 73 N.W.2d 436, 439-440 (N.D. 1955)

Stevahn v. Meidinger

Likewise, in Stevahn v. Meidinger, 79 N.D. 323, 57 N.W.2d 1 (N.D. 1952), the North Dakota Supreme Court identified the division of the intestate estate with respect to a decedent who died in 1941 by referencing the intestacy statute in effect in 1943:

Under the laws of this state

the surviving widow . . . succeeded to a four-twelfths interest and estate in the land owned by him at the time of his death, and

each of his three daughters and five sons succeeded to a one-twelfth interest and estate in such land.

NDRC 1943, 56-01-04.

The surviving widow and children of [the decedent] became tenants in common.

Johnson v. Brauch, 9 S.D. 116, 68 N.W. 173, 62 Am.St.Rep. 857; Aberle v. Merkel, 70 N.D. 89, 291 N.W. 913;

Hoffman v. Hoffman’s Heirs, 73 N.D. 637, 17 N.W.2d 903.

Stevahn v. Meidinger, 79 N.D. 323, 330, 57 N.W.2d 1, 7 (N.D. 1952),

Stevahn v. Meidinger

In Stevahn v. Meidinger,the North Dakota Supreme Court identified that a decedent’s heirs acquired their rights to the decedent’s real property immediately upon the death of the decedent:

All the real property owned by [the decedent] at the time of his death descended immediately to his heirs subject to the control of the county court and to the possession of any administrator appointed by that court for the purposes of administration.

NDRC 1943, 56-01-03

Stevahn v. Meidinger, 79 N.D. 323, 330, 57 N.W.2d 1, 7 (N.D. 1952),

b. Date of the Decedent’s Death – After June 30, 1975, but before January 1, 1996

(i) North Dakota Intestate Succession – Share of the Surviving Spouse

Pursuant to North Dakota probate statute – N.D.C.C. Section 30.1-04-02, adopted as a part of the Uniform Probate Code in North Dakota effective from July 1, 1975, until January 1, 1996, the surviving spouse was entitled to the following amounts and percentages of the North Dakota intestate estate:

If there is no surviving issue or parent of the decedent, the entire intestate estate.
If there is no surviving issue but the decedent is survived by a parent or parents, the first fifty thousand dollars, [$50,000] plus one-half of the balance of the intestate estate.
If there are surviving issue – all of whom are issue of the surviving spouse also, the first fifty thousand dollars, [$50,000] plus one-half of the balance of the intestate estate.
If there are surviving issue – one or more of whom are not issue of the surviving spouse, one-half of the intestate estate.

Source: S.L. 1973, ch. 257, § 1.

Please note that there is no provision effective prior to January 1, 1996, similar to N.D.C.C. Section 30.1-04-02(3) under current law, which reduces the share for the surviving spouse if the surviving spouse has one or more descendants who are not also descended from the decedent.

(ii) North Dakota Intestate Succession – Share of the Decedent’s Surviving Descendants

Pursuant to North Dakota probate statute – N.D.C.C. Section 30.1-04-03(1), adopted as a part of the Uniform Probate Code in North Dakota effective from July 1, 1975, until January 1, 1996, the decedent’s surviving descendants were entitled:

to the entire intestate estate if there was no surviving spouse, or

to that part of the intestate estate not passing to the surviving spouse under N.D.C.C. Section 30.1-04-02.

If such surviving descendants were all of the same degree of kinship to the decedent, they would take equally. However, if such surviving descendants were of unequal degree of kinship, the surviving descendants of more remote degree of kinship would take by representation.