§ 30.1-05-02 — (2-201, 2-204 through 2-208) Augmented estate

1. a. In this section:
(1) "Decedent's nonprobate transfers to others" means the decedent's
nonprobate transfers to persons, other than the decedent's spouse,
surviving spouse, the decedent, or the decedent's creditors, estate, or estate
creditors, that are included in the augmented estate under subdivision b of
subsection 2.
(2) "Fractional interest in property held in joint tenancy with the right of
survivorship", whether the fractional interest is unilaterally severable or not,
means the fraction, the numerator of which is one and the denominator of
which, if the decedent was a joint tenant, is one plus the number of joint
tenants who survive the decedent and which, if the decedent was not a joint
tenant, is the number of joint tenants.
(3) "Marriage", as it relates to a transfer by the decedent during marriage,
means any marriage of the decedent to the decedent's surviving spouse.
(4) "Nonadverse party" means a person who does not have a substantial
beneficial interest in the trust or other property arrangement that would be
adversely affected by the exercise or nonexercise of the power that the
person possesses respecting the trust or other property arrangement. A
person having a general power of appointment over property is deemed to
have a beneficial interest in the property.
(5) "Power" or "power of appointment" includes a power to designate the
beneficiary of a beneficiary designation.
(6) "Presently exercisable general power of appointment" means a power of
appointment under which, at the time in question, the decedent, whether or
not the decedent then had the capacity to exercise the power, held a power
to create a present or future interest in the decedent, the decedent's
creditors, the decedent's estate, or the creditors of the decedent's estate,
and includes a power to revoke or invade the principle of a trust or other
property arrangement.

(7) "Probate estate" means property, whether movable or immovable, wherever
situated, that would pass by intestate succession if the decedent died
without a valid will.
(8) "Property" includes values subject to a beneficiary designation.
(9) "Right to income" includes a right to payments under a commercial or
private annuity, an annuity trust, a unitrust, or a similar arrangement.
(10) "Transfer", as it relates to a transfer by or of the decedent, includes:
(a) An exercise or release of a presently exercisable general power of
appointment held by the decedent;
(b) A lapse at death of a presently exercisable general power of
appointment held by the decedent; and
(c) An exercise, release, or lapse of a general power of appointment that
the decedent created in the decedent and of a power described in
subparagraph b of paragraph 2 of subdivision b of subsection 2 that
the decedent conferred on a nonadverse party.
b. In subparagraph a of paragraph 3 of subdivision b of subsection 2, "termination",
with respect to a right or interest in property, means that the right or interest
terminated by the terms of the governing instrument or that the decedent
transferred or relinquished the right or interests; and, with respect to a power over
property, means that the power terminated by exercise, release, lapse, in default,
or otherwise, except that, with respect to a power described in subparagraph a of
paragraph 1 of subdivision b of subsection 2, "termination" means that the power
terminated by exercise or release, but not by lapse nor in default or otherwise.
2. The augmented estate consists of the sum of:
a. The value of the decedent's probate estate, reduced by funeral and
administration expenses, homestead allowance as defined in section 47-18-01,
family allowances, exempt property, and enforceable claims.
b. The value of the decedent's nonprobate transfers to others, which are composed
of all property, whether movable or immovable, wherever situated, not included in
the decedent's probate estate, of any of the following types:
(1) Property of any of the following types that passed outside probate at the
decedent's death:
(a) Property over which the decedent alone, immediately before death,
held a presently exercisable general power of appointment created by
the decedent during the marriage; the amount included is the value of
the property subject to the power, to the extent that the property
passed at the decedent's death, by exercise, release, lapse, in default,
or otherwise, to or for the benefit of any person other than the
decedent's estate or surviving spouse.
(b) The decedent's fractional interest in property, held by the decedent in
joint tenancy with the right of survivorship; the amount included is the
value of the decedent's fractional interest contributed by the decedent
during the marriage, to the extent that that fractional interest passed
by right of survivorship at the decedent's death to a surviving joint
tenant other than the decedent's surviving spouse.
(c) The decedent's ownership interest in property or accounts held in
POD, TOD, or co-ownership registration with the right of survivorship;
the amount included is the value of the decedent's ownership interest,
to the extent that the decedent's ownership interest passed at the
decedent's death to or for the benefit of any person other than the
decedent's estate or surviving spouse.
(2) Property transferred in any of the following forms by the decedent during
marriage:
(a) Any irrevocable transfer in which the decedent retained the right to the
possession or enjoyment of, or the income from, the property if and to
the extent that the decedent's right terminated at or continued beyond

the decedent's death; the amount included is the value of the fraction
of the property to which the decedent's right related, to the extent that
that fraction of the property passed outside probate to or for the
benefit of any person other than the decedent's estate or surviving
spouse.
(b) Any transfer in which the decedent created a power over the income
or principal of the transferred property, exercisable by the decedent
alone or in conjunction with any other person, or exercisable by a
nonadverse party, for the benefit of the decedent, the decedent's
creditors, the decedent's estate, or the creditors of the decedent's
estate; the amount included is the value of the property subject to the
power, to the extent that the power was exercisable at the decedent's
death to or for the benefit of any person other than the decedent's
surviving spouse or to the extent that the property subject to the power
passed at the decedent's death, by exercise, release, lapse, in default,
or otherwise, to or for the benefit of any person other than the
decedent's estate or surviving spouse.
(3) Property that passed during marriage and during the two-year period next
preceding the decedent's death as a result of a transfer by the decedent if
the transfer was of any of the following types:
(a) Any property that passed as a result of termination of a right or
interest in, or power over, property that would have been included in
the augmented estate under subparagraph a, b, or c of paragraph 1 of
this subdivision, or under paragraph 2 of this subdivision, if the right,
interest, or power had not terminated until the decedent's death; the
amount included is the value of the property that would have been
included under these subsections, except that the property is valued
at the time that the right, interest, or power terminated, and is included
only to the extent that the property passed upon termination to or for
the benefit of any person other than the decedent or the decedent's
estate, spouse, or surviving spouse.
(b) Any transfer of property, to the extent not otherwise included in the
augmented estate, made to or for the benefit of a person other than
the decedent's surviving spouse, the amount included is the value of
the transferred property to the extent that the aggregate transfers to
any one donee in either of the two years exceeded ten thousand
dollars.
c. The value of the decedent's nonprobate transfers to the decedent's surviving
spouse, which are composed of all property that passed outside probate at the
decedent's death from the decedent to the surviving spouse by reason of the
decedent's death, including:
(1) The decedent's fractional interest in property held as a joint tenant with the
right of survivorship, to the extent that the decedent's fractional interest
passed to the surviving spouse as surviving joint tenant;
(2) The decedent's ownership interest in property or accounts held in
co-ownership registration with the right of survivorship, to the extent the
decedent's ownership interest passed to the surviving spouse as surviving
co-owner;
(3) Proceeds of insurance, including accidental death benefits, on the life of the
decedent, if the decedent owned the insurance policy immediately before
death or if, and to the extent that, the decedent alone and immediately
before death held a presently exercisable general power of appointment
over the policy or its proceeds, the amount included is the value of the
proceeds, to the extent that they were payable at the decedent's death; and
(4) All other property that would have been included in the augmented estate
under paragraph 1 or 2 of subdivision b of this subsection had it passed to

or for the benefit of a person other than the decedent's spouse, surviving
spouse, the decedent, or the decedent's creditors, estate, or estate
creditors, but excluding property passing to the surviving spouse under the
federal social security system.
d. Except to the extent included in the augmented estate under subdivision a or c,
the value of property:
(1) That was owned by the decedent's surviving spouse at the decedent's
death, including:
(a) The surviving spouse's fractional interest in property held in joint
tenancy with the right of survivorship;
(b) The surviving spouse's ownership interest in property or accounts held
in co-ownership registration with the right of survivorship; and
(c) Property that passed to the surviving spouse by reason of the
decedent's death, but not including the spouse's right to homestead
allowance, family allowance, exempt property, or payments under the
federal social security system.
(2) That would have been included in the surviving spouse's nonprobate
transfers to others, other than the spouse's fractional and ownership interest
included under subparagraphs a and b of paragraph 1, had the spouse been
the decedent. Property included under this paragraph is valued at the
decedent's death, taking the fact that the decedent predeceased the spouse
into account, except that, for purposes of subparagraphs a and b of
paragraph 1, the values of the spouse's fractional and ownership interests
are determined immediately before the decedent's death if the decedent
was then a joint tenant or a co-owner of the property or accounts. The value
of property included under this paragraph is reduced in each category by
enforceable claims against the included property and is reduced by
enforceable claims against the surviving spouse.
3. The value of any property is excluded from the decedent's nonprobate transfers to
others to the extent the decedent received adequate and full consideration in money or
money's worth for a transfer of the property or if the property was transferred with the
written joinder of, or if the transfer was consented to in writing by, the surviving spouse.
Life insurance, accident insurance, pension, profit-sharing, retirement, and other
benefit plans payable to persons other than the decedent's surviving spouse or the
decedent's estate are also excluded from the decedent's nonprobate transfers.
4. The value of property includes the commuted value of any present or future interest
and the commuted value of amounts payable under any trust, life insurance settlement
option, annuity contract, public or private pension, disability compensation, death
benefit or retirement plan, or any similar arrangement, exclusive of the federal social
security system.
5. In case of overlapping application to the same property of the paragraphs or
subparagraphs of subsection 2, the property is included in the augmented estate
under the provision yielding the highest value, but under any one, but only one, of the
overlapping provisions if they all yield the same value.