Intestate Succession in North Dakota

If you die without a will in North Dakota, your assets will go to your closest relatives under state "intestate succession" laws. Here are some details about how intestate succession works in North Dakota.

Which Assets Pass by Intestate Succession

Only assets that pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:

• property you've transferred to a living trust
• life insurance proceeds with a named beneficiary
• funds in an IRA, 401(k), or other retirement account with a named beneficiary
• securities held in a transfer-on-death account
• real estate for which you have a transfer on death deed
• vehicles for which you have a transfer on death registration
• payable-on-death bank accounts, or
• property you own with someone else in joint tenancy or tenancy by the entirety.

These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don't have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.

To learn more about these types of assets, go to the How to Avoid Probate section of Nolo.com or read about Avoiding Probate in North Dakota.

Who Gets What in North Dakota?

Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here's a quick overview:

The Spouse's Share in North Dakota

In North Dakota, if you are married and you die without a will, what your spouse gets depends on whether or not you have living parents or descendants -- children, grandchildren, or great-grandchildren. If you don't, then your spouse inherits all of your intestate property. If you do, they and your spouse will share your intestate property as follows:

If you die with parents but no descendants. Your surviving spouse inherits the first $300,000 of your intestate property, plus 3/4 of the balance.

Example: Gerry is married to Joe, and her father is still alive. Gerry owns a house in joint tenancy with Joe, and Joe is also the named beneficiary of Gerry's retirement account. When Gerry dies, Joe automatically inherits the house and any remaining retirement funds; those things are not intestate property. Gerry also has $400,000 worth of additional property that would have passed under a will if she had made one. Joe inherits $375,000 worth of that property -- that is, $300,000 plus $75,000 worth of the remaining $100,000. Gerry's father inherits $25,000.

If you die with children or other descendants from you and the surviving spouse, and your surviving spouse has no descendants from previous relationships. Your surviving spouse inherits all of your intestate property.

If you die with children or other descendants from you and the surviving spouse, and your surviving spouse has other descendants from previous relationships. Your surviving spouse inherits the first $225,000 of your intestate property, plus 1/2 of the balance.

Example: Bill is married to Karen, and they have two grown children. Karen also has a son from a previous marriage. Bill and Karen own a large bank account in joint tenancy, and Bill took out a life insurance policy naming Karen as the beneficiary. When Bill dies, Karen receives the life insurance policy proceeds and inherits the bank account outright. Bill also owns $425,000 worth of property that would have passed under a will, so Karen inherits $325,000 worth of that property -- that is, $225,000 plus $100,000 of the remaining $200,000. Bill's and Karen's two children inherit $50,000 each.

If you die with descendants who are not the descendants of your surviving spouse. Your spouse inherits the first $150,000 of your intestate property, plus 1/2 of the balance.

Example: Barrett is married to Jed and also has a 12-year-old daughter from a previous marriage. Barrett owns a house in joint tenancy with Jed, plus $200,000 worth of additional, separate property that would have passed under a will if Barrett had made one. When Barrett dies, Jed inherits the house outright and $175,000 worth of Barrett's property -- that is, $150,000 plus $25,000 (half of the $50,000 balance). Barrett's daughter inherits the remaining $25,000 share of Barrett's property.

Children's Shares in North Dakota

If you die without a will in North Dakota, your children will receive an "intestate share" of your property. The size of each child's share depends on how many children you have, whether or not you are married, whether your spouse is also your children's parent, and whether your spouse has children from other relationships. (See the table above.)

For children to inherit from you under the laws of intestacy, the state of North Dakota must consider them your children, legally. For many families, this is not a confusing issue. But it's not always clear. Here are some things to keep in mind.

• Adopted children. Children you legally adopted will receive an intestate share, just as your biological children do. If you and your spouse were in the process of adopting at the time of your death, your child will receive a share if the adoption is granted to your spouse. N.D. Cent. Code § 30.1-04-17.
• Foster children and stepchildren. Foster children and stepchildren you never legally adopted will not automatically receive a share.
• Children placed for adoption. Children you placed for adoption and who were legally adopted by another family will not receive a share. However, if your biological children were adopted by your spouse, that won't affect their intestate inheritance. N.D. Cent. Code § 30.1-04-18.
• Posthumous children. Children conceived by you but not born before your death will receive a share if they survive at least 120 hours after birth. N.D. Cent. Code § 30.1-04-04.
• Children born outside of marriage. If you were not married to your children's mother when she gave birth to them, they will usually receive a share of your estate as long as they were not adopted or conceived by assisted reproduction to two other legal parents. N.D. Cent. Code § 30.1-04-16.
• Children born during your marriage. Any child born to your wife during your marriage is assumed to be your child and will receive a share of your estate.
• Children conceived by assisted reproduction. If you are the husband or partner of the child's birth mother and you clearly functioned or intended to function as the child's other parent within two years of the child's birth, the child will usually receive a share of your estate. N.D. Cent. Code § 30.1-04-19.
• Children born to gestational carrier. If you have a child that was born to a gestational carrier, that child will receive a share of your estate if your parent-child relationship was established by court order or you clearly functioned or intended to function as the child's parent within two years of the child's birth, as proved under North Dakota law. N.D. Cent. Code § 30.1-04-20.
• Grandchildren. A grandchild will receive a share only if that grandchild's parent (your son or daughter) is not alive to receive his or her share.

This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney. If you want to read the law itself, North Dakota Century Code § § 30.1-04-14 to 30.1-04-21 cover parent-child relationships.

Will the State Get Your Property?

If you die without a will and don't have any family, your property will "escheat" into the state's coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won't go to the state if you leave a spouse, children, siblings, parents, grandparents, aunts or uncles, great uncles or aunts, nieces or nephews, cousins of any degree, or the descendants of a spouse who dies before you do. (See North Dakota Century Code § 30.1-04-03.) If your property goes to the state, it is used to support schools.

Other North Dakota Intestate Succession Rules

Here are a few other things to know about North Dakota intestacy laws.

• Survivorship period. To inherit under North Dakota's intestate succession statutes, a person must outlive you by 120 hours. So, if you and your brother are in a car accident and he dies a few hours after you do, his estate would not receive any of your property. N.D. Cent. Code § 30.1-04-04.
• Half-relatives. "Half" relatives inherit as if they were "whole." That is, your sister with whom you share a father, but not a mother, has the same right to your property as she would if you had both parents in common. N.D. Cent. Code § 30.1-04-07.
• Posthumous relatives. Relatives conceived before -- but born after -- you die inherit as if they had been born while you were alive, as long as they survive at least 120 hours after birth. N.D. Cent. Code § 30.1-04-04.
• Immigration status. Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States. N.D. Cent. Code § 30.1-04-12.
• Advancements. If you give a relative property during your lifetime, the value of this property is subtracted from your relative's share only if you wrote this down at the time of making the gift or your relative admits this in writing at any time. N.D. Cent. Code § 30.1-04-10.

Learn More

To learn more about intestate succession, read How an Estate Is Settled If There's No Will.

You can find North Dakota's intestate succession law here: North Dakota Century Code § § 30.1-04-01 to 30.1-04-21.

For more about estate planning, go to the Wills, Trusts & Probate section of Nolo.com.