§ 30.1-05-05 — (2-211) Proceeding for elective share - Time limit

1. Except as provided in subsection 2, the election must be made by filing in the court
and mailing or delivering to the personal representative, if any, a petition for the
elective share within nine months after the date of the decedent's death, or within six
months after the probate of the decedent's will, whichever limitation later expires. The
surviving spouse shall serve a copy of the petition for the elective share on, and shall
give written notice of the time and place set for hearing to persons interested in the
estate and to the distributees and recipients of portions of the augmented estate
whose interests may be adversely affected by the taking of the elective share. Except
as provided in subsection 2, the decedent's nonprobate transfers to others, described
in subdivision b of subsection 2 of section 30.1-05-02, is not included within the
augmented estate for the purpose of computing the elective share, if the petition is
filed more than nine months after the decedent's death.
2. Within nine months after the decedent's death, the surviving spouse may petition the
court for an extension of time for making an election. If, within nine months after the
decedent's death, the spouse gives notice of the petition to all persons interested in
the decedent's nonprobate transfers to others, the court for cause shown by the
surviving spouse may extend the time for election. If the court grants the spouse's
petition for an extension, the decedent's nonprobate transfers to others, described in
subdivision b of subsection 2 of section 30.1-05-02, are not excluded from the

augmented estate for the purpose of computing the elective-share and supplemental
elective-share amounts, if the spouse makes an election by filing in the court and
mailing or delivering to the personal representative, if any, a petition for the elective
share within the time allowed by the extension.
3. The surviving spouse may withdraw a demand for an elective share at any time before
entry of a final determination by the court.
4. After notice and hearing, the court shall determine the elective-share and
supplemental elective-share amounts, and shall order its payment from the assets of
the augmented estate or by contribution as appears appropriate under sections
30.1-05-03 and 30.1-05-04. If it appears that a fund or property included in the
augmented estate has not come into the possession of the personal representative, or
has been distributed by the personal representative, the court nevertheless shall fix
the liability of any person who has any interest in the fund or property or who has
possession thereof, whether as trustee or otherwise. The proceeding may be
maintained against fewer than all persons against whom relief could be sought, but no
person is subject to contribution in any greater amount than the person would have
been under sections 30.1-05-03 and 30.1-05-04, had relief been secured against all
persons subject to contribution.
5. An order or judgment of the court may be enforced as necessary in suit for contribution
or payment in other courts of this state or other jurisdictions.
6. A copy of the order or judgment of the court shall be forwarded immediately to the tax
commissioner by the court.