§ 30.1-05-06 — (2-212) Right of election personal to surviving spouse - Incapacitated surviving spouse

surviving spouse.
1. The right of election may be exercised only by a surviving spouse who is living when
the petition for the elective share is filed in the court under subsection 1 of section
30.1-05-05. If the election is not exercised by the surviving spouse personally, it may
be exercised on the surviving spouse's behalf by the surviving spouse's conservator,
guardian, or agent under the authority of a power of attorney.
2. If the election is exercised on behalf of a surviving spouse who is an incapacitated
person, the court shall set aside that portion of the elective-share and supplemental
elective-share amounts due from the decedent's probate estate and recipients of the
decedent's nonprobate transfers to others under subsections 2 and 3 of section
30.1-05-03 and shall appoint a trustee to administer that property for the support of the
surviving spouse. For the purposes of this subsection, an election on behalf of a
surviving spouse by an agent under a durable power of attorney is presumed to be on
behalf of a surviving spouse who is an incapacitated person. The trustee shall
administer the trust in accordance with the following terms and any additional terms as
the court determines appropriate:
a. Expenditures of income and principal may be made in the manner, when, and to
the extent that the trustee determines suitable and proper for the surviving
spouse's support, without court order but with regard to other support, income,
and property of the surviving spouse exclusive of benefits of medical or other
forms of assistance from any state or federal government or governmental
agency for which the surviving spouse must qualify on the basis of need.
b. During the surviving spouse's incapacity, neither the surviving spouse nor anyone
acting on behalf of the surviving spouse has a power to terminate the trust; but if
the surviving spouse regains capacity, the surviving spouse then acquires the
power to terminate the trust and acquire full ownership of the trust property free of
trust, by delivering to the trustee a writing signed by the surviving spouse
declaring the termination.
c. Upon the surviving spouse's death, the trustee shall transfer the unexpended
trust property in the following order: under the residuary clause, if any, of the will
of the predeceased spouse against whom the elective share was taken, as if that

predeceased spouse died immediately after the surviving spouse; or to that
predeceased spouse's heirs under section 30.1-09.1-11.