Therefore, it is crucial for surviving spouses to understand their rights to the homestead, exempt property, and a family allowance. Securing these rights is vital for maintaining financial stability and accessing resources until the estate is fully settled.

Homestead

In North Dakota, under N.D.C.C. § 30-16-02, the surviving spouse has the right to claim the homestead, up to the value of the homestead exemption, until their remarriage or death. To claim the homestead exemption, the surviving spouse must request and receive a court order outlining the scope and duration of the homestead exemption.

Once the homestead has been claimed, the exempted value is excluded from the distributable assets of the estate and is protected from most creditors. However, if the homestead exceeds the value of the allowed homestead exemption (currently $150,000) and the court determines the property cannot be divided, the amount of the excess value may be used to pay the deceased spouse’s debts, but only after all other available property in the estate has been used.

Additionally, under N.D.C.C. § 47-18-29,  the excess value of the homestead, as well as the value of the homestead exemption upon expiration of the exemption, will be distributed pursuant to the terms of the deceased spouse’s will or the rules of intestate succession.

Example: Michael was the sole owner of the home he shared with his wife, Amy. At the time of Michael’s death, he had a will that left all of his real property to his brother, including the home which was valued at less than $150,000. Amy successfully petitioned the court to claim the North Dakota homestead exemption. Upon Amy’s death 10 years later, the homestead exemption expired and the home passed to Michael’s brother.

Exempt Property

In addition to the homestead exemption, N.D.C.C. § 30.1-07-01 allows the surviving spouse to claim exempt property with a net value of $15,000 or less. A surviving spouse may choose their exempt property from among their deceased spouse’s household furniture, automobiles, furnishings, appliances, and personal effects, except they may not choose property that has been specifically gifted to another person in the deceased spouse’s will unless there is insufficient property to make up the $15,000 value. If there is not $15,000 worth of exempt property in the estate, the surviving spouse is entitled to other assets in the estate with a value equal to the difference between the value of the available exempt property and the $15,000 limit.

A surviving spouse’s claim to exempt property takes precedence over creditor claims.

Example: Daniel’s probate estate includes personal property that could be claimed as exempt property worth $10,000 and other personal property worth $20,000, which was specifically gifted to various family members in his will. Among the specifically gifted property is a vehicle worth $15,000. When choosing her exempt property, his surviving spouse, Stephanie can claim the $10,000 of qualified personal property and $5,000 worth of the specifically gifted property. She cannot claim the vehicle as exempt property because its value would cause the total value of claimed property to exceed the $15,000 cap on exempt property.

Family Allowance

A surviving spouse is also entitled to a reasonable family allowance as outlined in N.D.C.C. § 30.1-07-02. The allowance is paid from money in the estate and can be issued either as a lump sum or in periodic installments during the administration of the probate.

The total amount of the family allowance cannot exceed $27,000, and the personal representative has the discretion to set a lower, reasonable amount. It is important to note that if there are insufficient assets to satisfy creditors’ claims, periodic payments of the family allowance cannot continue for longer than one year.

Like the homestead and exempt property, the family allowance is not subject to creditor claims.

Example: When Laura died, she left behind her husband, Ryan, an estate worth $300,000, and $20,000 in debt. The personal representative of Laura’s estate determines Ryan should receive the full amount of the family allowance permitted under the law, but knows Ryan would benefit more from regular periodic payments rather than a single lump sum payment. The personal representative also anticipates the probate will take longer than a year, so they decide to make monthly payments to Ryan of $1,500. These payments will continue for 18 months or until the probate is closed, whichever comes first.

Conclusion

Surviving spouses in North Dakota must claim their rights to the homestead, exempt property, and a family allowance to maintain financial stability during the probate process. Consulting with an attorney can help a surviving spouse navigate the probate and secure their immediate financial future.

For information about the rights of the surviving spouse in a Minnesota probate, check out this blog.

If you have any questions regarding probate, please contact us!

This article is for informational purposes only and is subject to our disclaimer.