Can a Child elect share of estate for Mother if Father did not leave Mother anything?

Full question:

My father passed away a few months back. My parents were not divorced but my father had not included my mother in his will. My mother is suffering from memory loss for quite a few years, and she is in my care. We live in North Dakota. Can I exercise elective share on behalf of my mother?

• Category: Wills and Estates
• Subcategory: Elective Share of Estate
• Date: 04/07/2025
• State: North Dakota

Answer:

North Dakota allows an agent under the authority of a power of attorney to exercise elective share on behalf of an incapacitated surviving spouse. In such circumstances, the court shall appoint a trustee to administer the property for the incapacitated spouse. The surviving spouse may terminate the trust in writing if she/he regains capacity.
Here, the child of the incapacitated mother may exercise elective share for her mother in her father’s property if she holds a power of attorney. The surviving spouse’s conservator or guardian also may exercise elective share.

The relevant law is set out as:

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