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30.1-06 Spouse and Children Unprovided for in Wills

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CHAPTER 30.1-06SPOUSE AND CHILDREN UNPROVIDED FOR IN WILLS30.1-06-01. (2-301) Entitlement of spouse - Premarital will.1.If the testator's surviving spouse married the testator after the testator executed a<br>will, the surviving spouse is entitled to receive, as an intestate share, no less than<br>the value of the share of the estate the surviving spouse would have received if the<br>testator had died intestate as to that portion of the testator's estate, if any, that<br>neither is devised to a child of the testator who was born before the testator married<br>the surviving spouse and who is not a child of the surviving spouse nor is devised to<br>a descendant of such a child or passes under section 30.1-09-05 or 30.1-09-06 to<br>such a child or to a descendant of such a child, unless:a.It appears from the will or other evidence that the will was made in<br>contemplation of the testator's marriage to the surviving spouse;b.The will expresses the intention that it is to be effective notwithstanding any<br>subsequent marriage; orc.The testator provided for the spouse by transfer outside the will and the intent<br>that the transfer be in lieu of a testamentary provision is shown by the testator's<br>statements or is reasonably inferred from the amount of the transfer or other<br>evidence.2.In satisfying the share provided by this section, devises made by the will to the<br>testator's surviving spouse, if any, are applied first, and other devises, other than a<br>devise to a child of the testator who was born before the testator married the<br>surviving spouse and who is not a child of the surviving spouse or a devise or<br>substitute gift under section 30.1-09-05 or 30.1-09-06 to a descendant of such a<br>child, abate as provided in section 30.1-20-02.30.1-06-02. (2-302) Omitted children.1.Except as provided in subsection 2, if a testator fails to provide in the will for any of<br>the testator's children born or adopted after the execution of the will, the omitted<br>afterborn or after-adopted child receives a share in the estate as follows:a.If the testator had no child living when the testator executed the will, an omitted<br>afterborn or after-adopted child receives a share in the estate equal in value to<br>that which the child would have received had the testator died intestate, unless<br>the will devised all or substantially all the estate to the other parent of the<br>omitted child and that other parent survives the testator and is entitled to take<br>under the will.b.If the testator had one or more children living when the testator executed the<br>will, and the will devised property or an interest in property to one or more of<br>the then-living children, an omitted afterborn or after-adopted child is entitled to<br>share in the testator's estate as follows:(1)The portion of the testator's estate in which the omitted afterborn or<br>after-adopted child is entitled to share is limited to devises made to the<br>testator's then-living children under the will.(2)The omitted afterborn or after-adopted child is entitled to receive the<br>share of the testator's estate, as limited in paragraph 1, that the child<br>would have received had the testator included all omitted afterborn andPage No. 1after-adopted children with the children to whom devises were made<br>under the will and had given an equal share of the estate to each child.(3)To the extent feasible, the interest granted an omitted afterborn or<br>after-adopted child under this section must be of the same character,<br>whether equitable or legal, present or future, as that devised to the<br>testator's then-living children under the will.(4)In satisfying a share provided by this subdivision, devises to the testator's<br>children who were living when the will was executed abate ratably. In<br>abating the devises of the then-living children, the court shall preserve to<br>the maximum extent possible the character of the testamentary plan<br>adopted by the testator.2.Neither subdivision a nor subdivision b of subsection 1 applies if:a.It appears from the will that the omission was intentional; orb.The testator provided for the omitted afterborn or after-adopted child by transfer<br>outside the will and the intent that the transfer be in lieu of a testamentary<br>provision is shown by the testator's statements or is reasonably inferred from<br>the amount of the transfer or other evidence.3.If at the time of execution of the will the testator fails to provide in the will for a living<br>child solely because the testator believes the child to be dead, the child is entitled to<br>share in the estate as if the child were an omitted afterborn or after-adopted child.4.In satisfying a share provided by subdivision a of subsection 1 or subsection 3,<br>devises made by the will abate under section 30.1-20-02.Page No. 2Document Outlinechapter 30.1-06 spouse and children unprovided for in wills