How a Pending Divorce Affects Your Existing Last Will in North Dakota

Many North Dakota residents mistakenly believe that the moment they move out of the marital home or file a divorce summons in Fargo, Bismarck, or Grand Forks, their estranged spouse is automatically cut out of their existing Last Will and Testament. In reality, dying while a North Dakota divorce is still pending-even one day before the judge signs the final divorce judgment-leaves your existing will 100% intact and legally enforceable in probate court.

In the landmark decision Jochim v. Jochim, 721 N.W.2d 25 (ND Supreme Court 2006), the North Dakota Supreme Court, Bismarck confirmed that when one spouse dies before a final divorce decree is entered, the pending divorce action immediately abates upon death because there is no longer a marriage left for the family court to dissolve. Consequently, under N.D. Cent. Code § 30.1-10-02, the estranged spouse remains the legal 'surviving spouse' and inherits everything left to them under an unrevised will unless proactive estate planning steps are taken during the separation.

How Final Divorce Decrees Automatically Alter Your Will

Understanding why a pending divorce is so dangerous for your estate requires looking at how North Dakota's Uniform Probate Code treats a completed divorce versus an unfinished one. Under N.D. Cent. Code § 30.1-10-04, the entry of a final decree of divorce or annulment automatically revokes several critical provisions in any pre-existing will:

• All Property Bequests to the Former Spouse: Any revocable disposition or appointment of property made by the will to the former spouse is automatically revoked.
• Bequests to the Former Spouse's Relatives: Unlike older probate statutes, N.D. Cent. Code § 30.1-10-04 also automatically revokes dispositions made to any relative of the former spouse (such as former stepchildren, former parents-in-law, or former siblings-in-law) who is not a blood or adoptive relative of the testator.
• Executor, Trustee, and Fiduciary Nominations: Any clause nominating the former spouse-or a relative of the former spouse-to serve as Personal Representative (executor), testamentary trustee, conservator, agent, or guardian is automatically revoked.
• Legal Effect of Revocation: Under N.D. Cent. Code § 30.1-10-04 subsection 4, the provisions of the will are given effect exactly as if the former spouse and the former spouse's relatives had disclaimed all provisions and predeceased the testator.

Crucially, however, N.D. Cent. Code § 30.1-10-04 and N.D. Cent. Code § 30.1-10-02 state explicitly that a 'decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section,' and that 'no change of circumstances other than as described in this section and in N.D. Cent. Code § 30.1-10-03 effects a revocation.' Until the District Court judge signs and enters the final divorce judgment-or a valid order terminating all marital property rights-none of these automatic revocations apply.

Drafting a New Will While Separated

Because North Dakota law does not freeze your testamentary freedom while a divorce is pending, you have the absolute legal right to revoke your prior will under N.D. Cent. Code § 30.1-08-07 and execute a new Last Will and Testament under N.D. Cent. Code § 30.1-08-02 at any point during your separation. While standard interim domestic summons orders in North Dakota restrict spouses from dissipating or transferring existing marital assets during a live lifetime divorce, executing a new will merely changes who inherits your share of property at death and does not transfer title during your lifetime.

When drafting a new will while separated in North Dakota, you must account for the surviving spouse's statutory elective share. Under N.D. Cent. Code § 30.1-05-01, a legal surviving spouse cannot be completely disinherited unilaterally prior to a final divorce decree unless they have signed a written agreement under the Uniform Premarital and Marital Agreements Act (N.D. Cent. Code § 14-03.2-05 and N.D. Cent. Code § 14-03.2-08). Even if your new will leaves your estranged spouse $0, a spouse who is still legally married to you on the date of your death has the right to petition the court for an elective share equal to 50% of the augmented estate (with a supplemental minimum of $75,000), plus statutory allowances such as the $15,000 exempt property allowance under N.D. Cent. Code § 30.1-07-01, the family allowance under N.D. Cent. Code § 30.1-07-02, and the homestead allowance under N.D. Cent. Code § 47-18-01.

Why, then, is drafting a new will during a pending divorce still critical? First, most married couples have reciprocal 'I Love You' wills leaving 100% of their estate to each other. Replacing that old will immediately cuts your estranged spouse's potential inheritance from 100% down to the statutory 50% elective share floor, preserving the other 50% of your estate for your children, parents, or chosen beneficiaries. Second, as illustrated in Matter of Estate of Knudsen, 322 N.W.2d 454 (ND Supreme Court 1982) and In re Estate of Zimmerman, 579 N.W.2d 591 (ND Supreme Court 1998), the elective share is not automatic-under N.D. Cent. Code § 30.1-05-05, the surviving spouse must affirmatively file a petition within nine months after death. Third, if you and your estranged spouse sign a written property settlement agreement or a mutual waiver of marital inheritance rights under the Uniform Premarital and Marital Agreements Act (N.D. Cent. Code § 14-03.2-05 and N.D. Cent. Code § 14-03.2-08) while the divorce is pending, your new will can disinherit your spouse 100% immediately, even before the judge enters the final divorce decree.

Removing an Ex-Spouse as Executor

Equally urgent during a pending divorce is stripping your estranged spouse of fiduciary control over your estate. Under N.D. Cent. Code § 30.1-13-03, the person nominated as Personal Representative (executor) in a decedent's will holds the highest statutory priority to be appointed by the court to administer the estate. If you pass away during a contentious divorce without updating your will, your estranged spouse can walk into the District Court, file Form 2, North Dakota, Supreme Court, Application for Informal Probate of Will and Appointment of a Personal Representative, and obtain Form 4, North Dakota, Supreme Court, Letters Testamentary.

Once armed with Letters Testamentary, your estranged spouse gains legal authority to take possession of your home, access your financial records, value your assets, and settle creditor claims. By executing a new North Dakota will (or a formal codicil) during your separation, you immediately revoke your estranged spouse's nomination under N.D. Cent. Code § 30.1-13-03 and install a trusted adult child, sibling, parent, or corporate fiduciary as your primary Personal Representative and testamentary trustee for any minor children's inheritance.

Step-by-Step Process in North Dakota for Updating Your Will During a Pending Divorce

Whether your estate would be probated in the Cass County District Court, Fargo, the Burleigh County District Court, Bismarck, the Grand Forks County District Court, Grand Forks, or the Ward County District Court, Minot, follow these five steps to protect your estate while a divorce is pending.

Step 1: Gathering Documents and Reviewing Interim Court Summons Restrictions

Gather your existing Last Will and Testament, any trusts, and the divorce summons issued in your case. While you must not violate interim restraining provisions regarding lifetime transfers of marital accounts or insurance policies, drafting and signing a new Last Will and Testament is completely permissible under N.D. Cent. Code § 30.1-08-07.

Step 2: Executing an Express Revocation Clause Under N.D. Cent. Code § 30.1-08-07

Do not rely on crossing out your spouse's name on your old will. Draft a completely new Last Will and Testament that begins with an unambiguous revocation clause: 'I hereby revoke all prior wills and codicils made by me.' Once the new will is signed, physically destroy the old will in accordance with N.D. Cent. Code § 30.1-08-07.

Step 3: Structuring Dispositions Around the Statutory Elective Share

Include a clear statement in your new will that you are currently party to a pending divorce action from your spouse and that it is your express intent to exclude your spouse and your spouse's relatives from receiving any voluntary bequest under your will, limiting your spouse strictly to whatever non-waivable statutory rights, if any, may exist under N.D. Cent. Code § 30.1-05-01 at the time of your death. If your spouse agrees during settlement talks, have both attorneys draft a written marital agreement waiving elective share rights signed by both parties under the Uniform Premarital and Marital Agreements Act (N.D. Cent. Code § 14-03.2-05 and N.D. Cent. Code § 14-03.2-08).

Step 4: Nominating a New Personal Representative and Testamentary Trustee

Name an independent, trusted relative or professional fiduciary as your Personal Representative under N.D. Cent. Code § 30.1-13-03. If your estranged spouse is willing to voluntarily relinquish priority to serve as Personal Representative, have them execute Form 9, North Dakota, Supreme Court, Waiver of Right to Appointment. If you have minor children, establish a testamentary trust inside your new will managed by a trusted third-party trustee so that, even if your surviving ex-spouse serves as the surviving parent and natural guardian of the children, your ex-spouse cannot touch or control the money you leave to your children.

Step 5: Signing, Witnessing, and Making the New Will Self-Proved

Execute the new will in strict compliance with N.D. Cent. Code § 30.1-08-02 and attach a notarized self-proving affidavit under N.D. Cent. Code § 30.1-08-04 before two disinterested witnesses and a notary public. Once your divorce decree is finally entered, review your will one more time to confirm whether any additional updates are needed.

How Much Does it Cost in North Dakota?

Updating your Last Will and Testament during a separation is a modest investment compared to the risk of an estranged spouse inheriting 100% of your estate:

• Attorney Fees to Draft a New North Dakota Will: Typically ranges from $300 to $1,000 for a flat-fee individual will (including a testamentary trust for minor children and executor updates), or $200 to $375 per hour for complex estates.
• Notary Public Fee for Self-Proving Affidavit: Capped by statute at a maximum of $5 per notarial act under N.D. Cent. Code § 44-06.1-28.
• Mutual Waiver of Elective Share Agreement (N.D. Cent. Code § 14-03.2-05 and N.D. Cent. Code § 14-03.2-08): Typically $250 to $600 when drafted by your estate or family counsel alongside property settlement stipulations.
• District Court Probate Filing Fee: If probate is opened in a North Dakota District Court, the statutory civil filing fee is $160 under N.D. Cent. Code § 27-05.2-03.

How Long Does the Process Take?

While a contested divorce in North Dakota can take 6 to 18 months to reach a final judgment, an experienced North Dakota estate planning attorney can draft and supervise the execution of a new Last Will and Testament in 24 to 72 hours (or on a same-day emergency basis if a testator is hospitalized). Your new will takes legal effect the moment you and your witnesses sign it. If a testator passes away while the divorce is still pending, a surviving spouse who wishes to claim a statutory elective share against the new will must file a formal petition with the District Court within 9 months after the date of death (or within 6 months after the probate of the will, whichever is later) pursuant to N.D. Cent. Code § 30.1-05-05. To protect your assets and fiduciary appointments right away, you can find and hire a trusted North Dakota estate planning lawyer through our directory on this website.

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