North Dakota Code 30.1-09.1-05 – (2-705) Class gifts construed to accord with intestate succession – Exceptions
1. In this section:
Terms Used In North Dakota Code 30.1-09.1-05
- following: when used by way of reference to a chapter or other part of a statute means the next preceding or next following chapter or other part. See North Dakota Code 1-01-49
- Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
- Individual: means a human being. See North Dakota Code 1-01-49
- Intestate: Dying without leaving a will.
- Process: means a writ or summons issued in the course of judicial proceedings. See North Dakota Code 1-01-49
a. “Adoptee” has the meaning set forth in section 30.1-04-14.
b. “Child of assisted reproduction” has the meaning set forth in section 30.1-04-19.
c. “Distribution date” means the time when an immediate or a postponed class gift is to take effect in possession or enjoyment.
d. “Functioned as a parent of the adoptee” has the meaning set forth in section 30.1-04-14, substituting “adoptee” for “child” in that definition.
e. “Functioned as a parent of the child” has the meaning set forth in section 30.1-04-14.
f. “Genetic parent” has the meaning set forth in section 30.1-04-14.
g. “Gestational child” has the meaning set forth in section 30.1-04-20. h. “Relative” has the meaning set forth in section 30.1-04-14.
2. A child of assisted reproduction, a gestational child, and except as otherwise provided in subsections 3 and 4, an adoptee and a child born to parents not married to each other, and their respective descendants if appropriate to the class, are included in class gifts and other terms of relationship in accordance with the rules for intestate succession. Terms of relationship in a governing instrument which do not differentiate relationships by the half blood from those by the whole blood, such as brothers, sisters, nieces, or nephews, are construed to include both types of relationships. Terms of relationship in a governing instrument that do not differentiate relationships by blood from those by marriage, such as uncles, aunts, nieces, or nephews, are construed to exclude relatives by marriage unless:
a. When the governing instrument was executed, the class was then and foreseeably would be empty; or
b. The language or circumstances otherwise establish that relatives by marriage were intended to be included.
3. In construing a dispositive provision of a transferor who is not the genetic parent, a child of a genetic parent is not considered the child of that parent unless the parent, a relative of the genetic parent, or the spouse or surviving spouse of a relative of the genetic parent functioned as a parent of the child before the child reached eighteen years of age.
4. In construing a dispositive provision of a transferor who is not the adoptive parent, an adoptee is not considered the child of the adoptive parent unless:
a. The adoption took place before the adoptee reached eighteen years of age; b. The adoptive parent was the adoptee’s stepparent or foster parent; or
c. The adoptive parent functioned as a parent of the adoptee before the adoptee reached eighteen years of age.
5. The following rules apply for purposes of the class-closing rules:
a. A child in utero at a particular time is treated as living at that time if the child lives one hundred twenty hours after birth.
b. If a child of assisted reproduction or a gestational child is conceived posthumously and the distribution date is the deceased parent’s death, the child is treated as living on the distribution date if the child lives one hundred twenty hours after birth and was in utero not later than thirty-six months after the deceased parent’s death or born not later than forty-five months after the deceased parent’s death.
c. An individual who is in the process of being adopted when the class closes is treated as adopted when the class closes if the adoption is subsequently granted.