§ 30.1-06-02 — (2-302) Omitted children

North Dakota § 30.1-06-02

• Jurisdiction: North Dakota
• Title 30.1: Uniform Probate Code
• Ch. 30.1-06: Spouse and Children Unprovided for in Wills

Text

1. Except as provided in subsection 2, if a testator fails to provide in the will for any of the
testator's children born or adopted after the execution of the will, the omitted 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
afterborn or after-adopted child receives a share in the estate equal in value to
that which the child would have received had the testator died intestate, unless
the will devised all or substantially all the estate to the other parent of the omitted
child and that other parent survives the testator and is entitled to take under the
will.
b. If the testator had one or more children living when the testator executed the will,
and the will devised property or an interest in property to one or more of the
then-living children, an omitted afterborn or after-adopted child is entitled to share
in the testator's estate as follows:
(1) The portion of the testator's estate in which the omitted afterborn or
after-adopted child is entitled to share is limited to devises made to the
testator's then-living children under the will.
(2) The omitted afterborn or after-adopted child is entitled to receive the share
of the testator's estate, as limited in paragraph 1, that the child would have
received had the testator included all omitted afterborn and after-adopted
children with the children to whom devises were made 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
after-adopted child under this section must be of the same character,
whether equitable or legal, present or future, as that devised to the testator's
then-living children under the will.
(4) In satisfying a share provided by this subdivision, devises to the testator's
children who were living when the will was executed abate ratably. In
abating the devises of the then-living children, the court shall preserve to the

maximum extent possible the character of the testamentary plan 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; or
b. The testator provided for the omitted afterborn or after-adopted child by transfer
outside the will and the intent that the transfer be in lieu of a testamentary
provision is shown by the testator's statements or is reasonably inferred from 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
child solely because the testator believes the child to be dead, the child is entitled to
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,
devises made by the will abate under section 30.1-20-02.