CHAPTER 30-01 General Provisions [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-02 Pleadings and Process [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-03 Hearings and Rehearings [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-04 Decrees and Orders [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-05 Probate of Wills [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-06 Objections to Probate and Contests of Wills [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-07 Proceedings in Estates of Testates After Probate of Will [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-08 Administration of Estates and Intestates [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-09 Special Administration [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-10 Guardianship [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-11 Qualification of Executors, Administrators, and Guardians [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-12 Removal and Discharge of Executors, Administrators, and Guardians [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-13 Powers, Duties, and Liabilities of Executors and Administrators [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-14 Powers, Duties, and Liabilities of Guardians [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-15 Inventory and Appraisement [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-16 Homestead Exemption and Allowance

30-16-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Homestead” has the meaning set forth in section 47-18-01.
  2. “Homestead estate” means the right to the possession, use, control, income, and rents of the real property held or occupied by the decedent as a homestead at death.
  3. “Youngest” means the decedent’s child, either by birth or adoption, last to attain majority.

Source: R.C. 1895, § 3627; R.C. 1899, § 3627; R.C. 1905, § 5072; C.L. 1913, § 5628; R.C. 1943, § 30-1601.

Cross-References.

Homestead, general provisions, see N.D.C.C. ch. 47-18.

Waiver of rights by surviving spouse, see N.D.C.C. § 30.1-05-07.

Notes to Decisions

Death of Head of Family.

Upon the death of the head of a family, the homestead survives for the benefit of the surviving husband or wife and minor children. Sexton v. Sutherland, 37 N.D. 500, 164 N.W. 278, 1917 N.D. LEXIS 133 (N.D. 1917).

Collateral References.

Rights of surviving spouse and children in proceeds of sale of homestead in decedent’s estate, 6 A.L.R.2d 515.

Aged person, homestead as subject to right of public to reimbursement for financial assistance to, 29 A.L.R.2d 731.

Separation agreement as barring right of surviving spouse to homestead, 34 A.L.R.2d 1020, 1039.

Antenuptial agreements: operation and effect of antenuptial agreements to waive or bar surviving spouse’s right to probate homestead or surviving family’s similar homestead right or exemption, 65 A.L.R.2d 727.

Estate or interest in real property to which a homestead claim may attach, 74 A.L.R.2d 1355.

Undivided interest as estate in real property to which homestead claim may attach, 74 A.L.R.2d 1355.

Divorce, effect on homestead right in deceased former spouse’s estate, 84 A.L.R.2d 703.

Abandonment, desertion, or refusal to support on part of surviving spouse as affecting marital rights in deceased spouse’s estate, 13 A.L.R.3d 446.

Adultery on part of surviving spouse as affecting marital rights in deceased spouse’s estate, 13 A.L.R.3d 486.

Law Reviews.

Homesteads, 24 Bar Briefs, State Bar Ass’n of N.D. 123 (1948).

30-16-02. Descent and distribution of homestead estate.

Upon the death of a person in whom the title to real property constituting a homestead is vested, a homestead estate shall survive, and, until otherwise disposed of according to law, shall be set over to the persons and in the order following:

  1. To the surviving spouse for life or until the surviving spouse again marries.
  2. If there is no surviving spouse, to the decedent’s minor child or children, if any, until the youngest attains majority.
  3. If the surviving spouse dies before the youngest child attains majority, then after such death to the decedent’s minor child or children, if any, until the youngest attains majority. If a surviving minor child dies before the homestead estate has been terminated, such estate thereafter shall be dealt with as though such child had not lived.

Source: Prob. C. 1877, §§ 128, 131; S.L. 1881, ch. 108, § 1; 1891, ch. 67, § 16; R.C. 1895, §§ 3626, 6389; S.L. 1897, ch. 111, § 25; R.C. 1899, §§ 3626, 6389; R.C. 1905, §§ 5071, 8087; C.L. 1913, §§ 5627, 8723; R.C. 1943, § 30-1602.

Notes to Decisions

Bankruptcy Claims.

Intestate’s administrator had no substantial rights, powers, or duties in respect to homestead to which decedent’s children had acquired legal title, and was not entitled to relief under farmer-debtor provisions of Bankruptcy Act. North Dakota v. Schafer, 131 F.2d 9, 1942 U.S. App. LEXIS 2694 (8th Cir. N.D. 1942).

Death of Spouse.

Upon the death of either husband or wife, the survivor, as long as he or she does not again marry, may continue to possess and occupy the whole homestead. Tyvand v. McDonnell, 37 N.D. 251, 164 N.W. 1, 1917 N.D. LEXIS 104 (N.D. 1917).

Existence of Homestead.

A homestead, once established, exists after the death of the husband or wife for the surviving husband or wife and minor children. Meidinger v. Security State Bank, 55 N.D. 301, 213 N.W. 850, 1927 N.D. LEXIS 37 (N.D. 1927).

Minor Children.

Minor children of deceased father were not entitled to a homestead estate where the surviving wife subsequently married and left the state with the children. In re Druhl's Estate, 61 N.D. 168, 237 N.W. 697, 1931 N.D. LEXIS 260 (N.D. 1931).

Survival of Homestead Estate.

No homestead estate can survive, descend, or be distributed to any person named in this section if the decedent, at the time of his death, was not entitled to a homestead exemption. Holcomb v. Holcomb, 18 N.D. 561, 120 N.W. 547, 1909 N.D. LEXIS 14 (N.D. 1909).

Surviving Widow.
—In General.

The surviving widow and minor children are entitled to a homestead estate to the extent prescribed by the statute in the property owned and occupied by the decedent at the time of his death as a family home, although the homestead exceeds in value the statutory limits of the homestead exemption. Calmer v. Calmer, 15 N.D. 120, 106 N.W. 684, 1906 N.D. LEXIS 18 (N.D. 1906).

Upon the death of the head of a family, the homestead survives for the benefit of the surviving husband or wife and minor children. Sexton v. Sutherland, 37 N.D. 500, 164 N.W. 278, 1917 N.D. LEXIS 133 (N.D. 1917).

The homestead character of realty, constituting the homestead of a widowed mother and minor children, ceases on the death of the mother and the attaining of majority of the children. Ruble v. Grafton Nat'l Bank, 64 N.D. 129, 250 N.W. 784, 1933 N.D. LEXIS 257 (N.D. 1933).

—Protection.

The homestead laws were made for the protection of the widow whether she has children to support or not. Healy v. Bismarck Bank, 30 N.D. 628, 153 N.W. 392, 1915 N.D. LEXIS 148 (N.D. 1915).

—Rent for Devised Land.

A widow is entitled to rent for land devised to her absolutely and utilized for the benefit of the estate. In re Korsmo's Estate, 56 N.D. 927, 220 N.W. 128, 1928 N.D. LEXIS 216 (N.D. 1928).

—Rights Not Impaired by Remarriage.

When a decedent dies seized in fee of land occupied and used by himself and family as a homestead at the time of his decease, the surviving widow is entitled, as against his heirs or devisees, to occupy and possess the whole of such homestead as long as she preserves its homestead character by maintaining her home thereon, and her second marriage does not impair this right. Fore v. Fore’s Estate, 2 N.D. 260, 50 N.W. 712 (1891), explained, Birks v. Globe Int’l Protective Bureau, 56 N.D. 613, 218 N.W. 864 (1928); where surviving wife was sole heir and devisee, her remarriage did not divest her of homestead estate which belonged to her absolutely as heir and devisee, free and clear of any claims of creditors of her deceased husband. Cullen v. Sullivan, 51 N.D. 384, 199 N.W. 760, 1924 N.D. LEXIS 167 (N.D. 1924).

—Title Not Vested.

The death of the husband does not vest the title to the homestead in the wife, but she takes the homestead estate for life or years according to statute. O'Hare v. Bismarck Bank, 45 N.D. 641, 178 N.W. 1017, 1920 N.D. LEXIS 168 (N.D. 1920).

Sister-in-law, who was the landowner’s brother’s surviving spouse, was not entitled to a probate homestead on land the brothers once held as joint tenants because when one of the brothers passed away, any interest the brother held was divested, and there was no interest upon which a homestead claim could attach. Seehafer v. Seehafer, 2005 ND 175, 704 N.W.2d 841, 2005 N.D. LEXIS 210 (N.D. 2005).

Surviving spouse cannot claim a probate homestead on land that was held in joint tenancy because, upon the death of one of the joint tenants, any interest the deceased spouse held in the joint tenancy is divested, and there is no interest upon which a homestead claim can attach. Seehafer v. Seehafer, 2005 ND 175, 704 N.W.2d 841, 2005 N.D. LEXIS 210 (N.D. 2005).

30-16-03. Homestead, ascertainment — Setting apart.

After the death of the owner, the homestead, upon the selection of the person or persons entitled to the possession thereof, must be ascertained and set apart as provided in this chapter, except that if the homestead was ascertained and set off to the decedent before the decedent’s death, in the manner provided by law, such homestead, as defined in section 30-16-01, must not be again ascertained and the homestead estate provided for in section 30-16-02 shall be commensurate therewith. The homestead shall not be subject to the payment of any debt or liability contracted by or existing against the husband or wife, or either of them, previous to or at the time of the death of such husband or wife, other than the liabilities set forth in section 47-18-04, and except as otherwise provided in section 30-16-04.

Source: Prob. C. 1877, §§ 128, 131; S.L. 1881, ch. 108, § 1; R.C. 1895, §§ 3628, 6389; S.L. 1897, ch. 111, § 25; R.C. 1899, §§ 3628, 6389; R.C. 1905, §§ 5073, 8087; C.L. 1913, §§ 5629, 8723; R.C. 1943, § 30-1603.

Notes to Decisions

Continuation of Homestead.

A homestead, once established, exists after the death of the husband or wife for the surviving husband or wife and minor children. Meidinger v. Security State Bank, 55 N.D. 301, 213 N.W. 850, 1927 N.D. LEXIS 37 (N.D. 1927).

Death of Head of Family.

Upon the death of the head of a family, the homestead survives for the benefit of the surviving husband or wife and minor children. Sexton v. Sutherland, 37 N.D. 500, 164 N.W. 278, 1917 N.D. LEXIS 133 (N.D. 1917).

Property Rights of Widow.

The widow has no absolute rights in the property of her deceased husband except her right to the homestead as survivor. FORE v. FORE, 2 N.D. 260, 50 N.W. 712, 1891 N.D. LEXIS 50 (N.D. 1891).

30-16-04. Descent and distribution of real property subject to homestead estate. [Effective through August 31, 2022]

The real property subjected to the homestead estate descends, subject to the full satisfaction of that estate, exempt from decedent’s debts except claims in favor of the county for county general assistance, the department of human services for general assistance, and also for claims of the state of North Dakota for repayment of old-age assistance and aid to the permanently and totally disabled and as otherwise provided in section 47-18-04, and must be distributed in the manner in which real property not subjected to a homestead estate is distributed or as directed in the decedent’s will. The real property constituting the homestead of a decedent, or any part thereof, may not descend or be distributed to any person other than the surviving spouse and decedent’s heirs in the direct descending line as prescribed in title 30.1 until all the decedent’s debts are fully paid.

Source: R.C. 1895, § 3630; R.C. 1899, § 3630; R.C. 1905, § 5075; C.L. 1913, § 5631; S.L. 1941, ch. 236, § 1; 1943, ch. 214, § 1; R.C. 1943, § 30-1604; S.L. 1959, ch. 262, § 1; 1973, ch. 257, § 31; 1995, ch. 456, § 4; 2019, ch. 391, § 41, effective January 1, 2020.

Cross-References.

Lands may be devised subject to homestead estate, see N.D.C.C. § 47-18-29.

Notes to Decisions

Continuance of Homestead.

Upon the death of the head of a family, the homestead survives for the benefit of the surviving husband or wife and minor children. Sexton v. Sutherland, 37 N.D. 500, 164 N.W. 278, 1917 N.D. LEXIS 133 (N.D. 1917).

A homestead, once established, exists after the death of the husband or wife for the surviving husband or wife and minor children. Meidinger v. Security State Bank, 55 N.D. 301, 213 N.W. 850, 1927 N.D. LEXIS 37 (N.D. 1927).

Surviving Widow.

Where the husband dies, leaving the wife as sole heir, the title to the homestead vests in the wife exempt from any claims, except those specifically prescribed by statute. Swiden v. Hasn, 43 N.D. 360, 175 N.W. 213, 1919 N.D. LEXIS 41 (N.D. 1919); Cullen v. Sullivan, 51 N.D. 384, 199 N.W. 760, 1924 N.D. LEXIS 167 (N.D. 1924).

A widow is entitled to rent for land devised to her absolutely and utilized for the benefit of the estate. In re Korsmo's Estate, 56 N.D. 927, 220 N.W. 128, 1928 N.D. LEXIS 216 (N.D. 1928).

30-16-04. Descent and distribution of real property subject to homestead estate. [Effective September 1, 2022]

The real property subjected to the homestead estate descends, subject to the full satisfaction of that estate, exempt from decedent’s debts except claims in favor of the county for county general assistance, the department of health and human services for general assistance, and also for claims of the state of North Dakota for repayment of old-age assistance and aid to the permanently and totally disabled and as otherwise provided in section 47-18-04, and must be distributed in the manner in which real property not subjected to a homestead estate is distributed or as directed in the decedent’s will. The real property constituting the homestead of a decedent, or any part thereof, may not descend or be distributed to any person other than the surviving spouse and decedent’s heirs in the direct descending line as prescribed in title 30.1 until all the decedent’s debts are fully paid.

Source: R.C. 1895, § 3630; R.C. 1899, § 3630; R.C. 1905, § 5075; C.L. 1913, § 5631; S.L. 1941, ch. 236, § 1; 1943, ch. 214, § 1; R.C. 1943, § 30-1604; S.L. 1959, ch. 262, § 1; 1973, ch. 257, § 31; 1995, ch. 456, § 4; 2019, ch. 391, § 41, effective January 1, 2020; 2021, ch. 352, § 340, effective September 1, 2022.

30-16-05. Personal representative to value homestead.

The personal representative of an estate must procure from the person or persons to whom real property subjected to a homestead estate has descended a description of such property and must appraise the same at its value at the time of the death of the decedent. If necessary, the personal representative shall cause the boundaries thereof to be ascertained and marked in the personal representative’s presence by a competent surveyor. If the personal representative finds that it has been selected in such form as will materially diminish the value of any remaining part of the property, the personal representative may modify its boundaries so as to avoid such injury if it can be done without material injury to the homestead property. Should the personal representative find that the property selected as a homestead exceeds in value any limitation in value fixed by law, the personal representative in like manner shall set off the homestead in such form as to exclude the excess unless the personal representative further finds that the property cannot be divided without material injury. The personal representative shall make a full report of all the personal representative’s findings in relation to the homestead and annex the same to the inventory.

Source: R.C. 1895, § 6390; R.C. 1899, § 6390; R.C. 1905, § 8088; C.L. 1913, § 8724; R.C. 1943, § 30-1605; S.L. 1973, ch. 257, § 32.

Notes to Decisions

Division.

Homestead may be divided when the value of the homestead exceeds the homestead exemption amount of $100,000.00 and no material injury would result from the division; therefore, a district court did not abuse its discretion by dividing a marital homestead and awarding a surviving spouse a second floor residence as the homestead. However, the surviving spouse was improperly ordered to pay rent to live in the marital home; the decision to divide the marital home so as to ensure the value of the homestead granted to the surviving spouse remained within the homestead exemption amount was inconsistent with the purposes of the homestead provisions or case law. Mattern v. Frank J. Mattern Estate, 2015 ND 155, 864 N.W.2d 458, 2015 N.D. LEXIS 163 (N.D. 2015).

Proceeding to Set Aside.

A proceeding to have a homestead set aside was properly brought under this section and section 30-16-07 (since repealed), and not under section 47-18-06. Farmers' State Bank v. Bartley, 53 N.D. 376, 206 N.W. 414, 1925 N.D. LEXIS 97 (N.D. 1925).

Setting Off Exempt Part.

Where the homestead property can be divided without material injury, and exceeds the amount exempted in area or value, the exempt part is set off by metes and bounds in substantially the same manner as that prescribed in case of an execution levy in the lifetime of the decedent. Calmer v. Calmer, 15 N.D. 120, 106 N.W. 684, 1906 N.D. LEXIS 18 (N.D. 1906).

30-16-06. Exempt personal property — Selection. [Repealed]

Repealed by S.L. 1973, ch. 257, § 82.

Note.

For present provisions, see §§ 30.1-07-01 and 30.1-07-03.

30-16-07. Return of inventory and appraisement — Objections — Hearing. [Repealed]

Repealed by S.L. 1973, ch. 257, § 82.

30-16-08. Decree setting apart homestead estate.

In its decree made in proceedings to set apart the homestead estate, the court must set apart the homestead estate and set forth the name and the date on which each minor will attain majority and shall direct that in case the surviving spouse dies before the last of such dates is reached, the minor child or children then surviving, from the time of such death, shall succeed to such homestead estate until the youngest child attains majority.

Source: R.C. 1895, § 3629; R.C. 1899, § 3629; R.C. 1905, § 5074; C.L. 1913, § 5630; R.C. 1943, § 30-1608; S.L. 1973, ch. 257, § 33.

30-16-09. Excess value of homestead available for debts.

If the court finds that the homestead selected in an estate exceeds in value any limitation fixed by law and that the property cannot be divided without material injury, the order setting it apart must determine the amount of such excess, and thereafter the property to the extent of the excess so determined may be subjected, after all of the other available property has been exhausted, to the payment of debts in the same manner as other property.

Source: R.C. 1895, § 6392; R.C. 1899, § 6392; R.C. 1905, § 8090; C.L. 1913, § 8726; R.C. 1943, § 30-1609.

Notes to Decisions

Division.

Homestead may be divided when the value of the homestead exceeds the homestead exemption amount of $100,000.00 and no material injury would result from the division; therefore, a district court did not abuse its discretion by dividing a marital homestead and awarding a surviving spouse a second floor residence as the homestead. However, the surviving spouse was improperly ordered to pay rent to live in the martial home; the decision to divide the martial home so as to ensure the value of the homestead granted to the surviving spouse remained within the homestead exemption amount was inconsistent with the purposes of the homestead provisions or case law. Mattern v. Frank J. Mattern Estate, 2015 ND 155, 864 N.W.2d 458, 2015 N.D. LEXIS 163 (N.D. 2015).

Excess Available for Creditor.

Where the county court, acting within its jurisdiction, determined after full hearing on the subject that the homestead property could not be divided and that the excess value above the maximum of five thousand dollars was one thousand four hundred dollars, such excess became available to creditor. Farmers' State Bank v. Bartley, 53 N.D. 376, 206 N.W. 414, 1925 N.D. LEXIS 97 (N.D. 1925).

30-16-10. Allowance for the family — Preferred claim — When effective. [Repealed]

Repealed by S.L. 1973, ch. 257, § 82.

Note.

For present provisions, see § 30.1-07-02.

CHAPTER 30-17 Summary Administration of Small Estates [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-18 Claims and Payment of Debts [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-19 Sale and Mortgaging of Property [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-20 Accounting and Settlement [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-21 Distribution and Partition [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-21.1 Uniform Estate Tax Apportionment Act [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-22 Establishment of Heirship [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-23 Veterans’ Guardianship [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-24 Actions by and Against Executors and Administrators [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-25 Escheats [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82]

CHAPTER 30-26 Appeals [Repealed]

[Repealed by S.L. 1973, ch. 257, § 82; 1981, ch. 91, § 66; 1981, ch. 319, § 51]