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

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.