CHAPTER 30.1-09.1RULES OF CONSTRUCTION OF GOVERNING INSTRUMENT30.1-09.1-01. (2-701) Scope. In the absence of a finding of a contrary intention, therules of construction in this chapter control the construction of a governing instrument. The rules<br>of construction in this chapter apply to a governing instrument of any type, except as the<br>application of a particular section is limited by its terms to a specific type or types of provisions or<br>governing instrument.30.1-09.1-02. (2-702) Requirement of survival by one hundred twenty hours.1.For the purposes of this title, except as provided in subsection 4, an individual who is<br>not established by clear and convincing evidence to have survived an event,<br>including the death of another individual, by one hundred twenty hours is deemed to<br>have predeceased the event.2.Except as provided in subsection 4, for purposes of a provision of a governing<br>instrument that relates to an individual surviving an event, including the death of<br>another individual, an individual who is not established by clear and convincing<br>evidence to have survived the event by one hundred twenty hours is deemed to<br>have predeceased the event.3.Except as provided in subsection 4, if it is not established by clear and convincing<br>evidence that one of two coowners with right of survivorship survived the other<br>coowner by one hundred twenty hours, one-half of the property passes as if one had<br>survived by one hundred twenty hours and one-half as if the other had survived by<br>one hundred twenty hours and there are more than two coowners and it is not<br>established by clear and convincing evidence that at least one of them survived the<br>others by one hundred twenty hours, the property passes in the proportion that one<br>bears to the whole number of coowners. For purposes of this subsection, the term<br>"coowners with right of survivorship" includes joint tenants, tenants by the entireties,<br>and other coowners of property or accounts held under circumstances that entitles<br>one or more to the whole of the property or account on the death of the other or<br>others.4.Survival by one hundred twenty hours is not required if:a.The governing instrument contains some language dealing explicitly with<br>simultaneous deaths or deaths in a common disaster and that language is<br>operable under the facts of the case;b.The governing instrument expressly indicates that an individual is not required<br>to survive an event, including the death of another individual, by any specific<br>period or expressly requires the individual to survive the event by a specific<br>period, but survival of the event or the specified period must be established by<br>clear and convincing evidence;c.Imposition of a one-hundred-twenty-hour requirement of survival would cause a<br>nonvested property interest or a power of appointment to fail to qualify for<br>validity under subdivision a of subsection 1, subdivision a of subsection 2, or<br>subdivision a of subsection 3 of section 47-02-27.1, or to become invalid under<br>subdivision b of subsection 1, subdivision b of subsection 2, or subdivision b of<br>subsection 3 of section 47-02-27.1, but survival must be established by clear<br>and convincing evidence; ord.The application of a one-hundred-twenty-hour requirement of survival to<br>multiple governing instruments would result in an unintended failure orPage No. 1duplication of a disposition, but survival must be established by clear and<br>convincing evidence.5.a.A payer or other third party is not liable for having made a payment or<br>transferred an item of property or any other benefit to a beneficiary designated<br>in a governing instrument who, under this section, is not entitled to the payment<br>or item of property, or for having taken any other action in good-faith reliance<br>on the beneficiary's apparent entitlement under the terms of the governing<br>instrument, before the payer or other third party received written notice of a<br>claimed lack of entitlement under this section. A payer or other third party is<br>liable for a payment made or other action taken after the payer or other third<br>party received written notice of a claimed lack of entitlement under this section.b.Written notice of a claimed lack of entitlement under subdivision a must be<br>mailed to the payer's or other third party's main office or home by registered<br>mail or served upon the payer or other third party in the same manner as a<br>summons in a civil action. Upon receipt of written notice of a claimed lack of<br>entitlement under this section, a payer or other third party may pay any amount<br>owed or transfer or deposit any item of property held by it to or with the court<br>having jurisdiction of the probate proceedings relating to the decedent's estate,<br>or if no proceedings have been commenced, to or with the court having<br>jurisdiction of probate proceedings relating to decedents' estates located in the<br>county of the decedent's residence. The court shall hold the funds or item of<br>property and, upon its determination under this section, shall order<br>disbursement in accordance with the determination. Payments, transfers, or<br>deposits made to or with the court discharge the payer or other third party from<br>all claims for the value of amounts paid to or items of property transferred to or<br>deposited with the court.6.a.A person who purchases property for value and without notice, or who receives<br>a payment or other item of property in partial or full satisfaction of a legally<br>enforceable obligation, is neither obligated under this section to return the<br>payment, item of property, or benefit nor is liable under this section for the<br>amount of the payment or the value of the item of property or benefit. But a<br>person who, not for value, receives a payment, item of property, or any other<br>benefit to which the person is not entitled under this section is obligated to<br>return the payment, item of property, or benefit, or is personally liable for the<br>amount of the payment or the value of the item of property or benefit, to the<br>person who is entitled to it under this section.b.If this section or any part of this section is preempted by federal law with<br>respect to a payment, an item of property, or any other benefit covered by this<br>section, a person who, not for value, receives the payment, item of property, or<br>any other benefit to which the person is not entitled under this section is<br>obligated to return the payment, item of property, or benefit, or is personally<br>liable for the amount of the payment or the value of the item of property or<br>benefit, to the person who would have been entitled to it were this section or<br>part of this section not preempted.30.1-09.1-03.(2-703) Choice of law as to meaning and effect of governinginstrument. The meaning and legal effect of a governing instrument is determined by the local<br>law of the state selected by the transferor in the governing instrument, unless the application of<br>that law is contrary to the provisions relating to the elective share described in chapter 30.1-05,<br>the provisions relating to exempt property and allowances described in chapter 30.1-07, or any<br>other public policy of this state otherwise applicable to the disposition.30.1-09.1-04.(2-704) Power of appointment - Meaning of specific referencerequirement. If a governing instrument creating a power of appointment expressly requires that<br>the power be exercised by a reference, an express reference, or a specific reference, to thePage No. 2power or its source, it is presumed that the donor's intention, in requiring that the donee exercise<br>the power by making reference to the particular power or to the creating instrument, was to<br>prevent an inadvertent exercise of the power.30.1-09.1-05. (2-705) Class gifts construed to accord with intestate succession -Exceptions.1.In this section: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<br>30.1-04-19.c."Distribution date" means the time when an immediate or a postponed class gift<br>is to take effect in possession or enjoyment.d."Functioned as a parent of the adoptee" has the meaning set forth in section<br>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<br>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<br>provided in subsections 3 and 4, an adoptee and a child born to parents not married<br>to each other, and their respective descendants if appropriate to the class, are<br>included in class gifts and other terms of relationship in accordance with the rules for<br>intestate succession. Terms of relationship in a governing instrument which do not<br>differentiate relationships by the half blood from those by the whole blood, such as<br>brothers, sisters, nieces, or nephews, are construed to include both types of<br>relationships.Terms of relationship in a governing instrument that do notdifferentiate relationships by blood from those by marriage, such as uncles, aunts,<br>nieces, or nephews, are construed to exclude relatives by marriage unless:a.When the governing instrument was executed, the class was then and<br>foreseeably would be empty; orb.The language or circumstances otherwise establish that relatives by marriage<br>were intended to be included.3.In construing a dispositive provision of a transferor who is not the genetic parent, a<br>child of a genetic parent is not considered the child of that parent unless the parent,<br>a relative of the genetic parent, or the spouse or surviving spouse of a relative of the<br>genetic parent functioned as a parent of the child before the child reached eighteen<br>years of age.4.In construing a dispositive provision of a transferor who is not the adoptive parent,<br>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; orPage No. 3c.The adoptive parent functioned as a parent of the adoptee before the adoptee<br>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<br>lives one hundred twenty hours after birth.b.If a child of assisted reproduction or a gestational child is conceived<br>posthumously and the distribution date is the deceased parent's death, the child<br>is treated as living on the distribution date if the child lives one hundred twenty<br>hours after birth and was in utero not later than thirty-six months after the<br>deceased parent's death or born not later than forty-five months after the<br>deceased parent's death.c.An individual who is in the process of being adopted when the class closes is<br>treated as adopted when the class closes if the adoption is subsequently<br>granted.30.1-09.1-06. (2-706) Life insurance - Retirement plan - Account with payable ondeath designation - Transfer-on-death registration - Deceased beneficiary.1.In this section:a."Alternative beneficiary designation" means a beneficiary designation that is<br>expressly created by the governing instrument and, under the terms of the<br>governing instrument, can take effect instead of another beneficiary designation<br>on the happening of one or more events, including survival of the decedent or<br>failuretosurvivethedecedent, whether an event is expressed incondition-precedent, condition-subsequent, or any other form.b."Beneficiary" means the beneficiary of a beneficiary designation under which<br>the beneficiary must survive the decedent and includes a class member if the<br>beneficiary designation is in the form of a class gift and includes an individual or<br>class member who was deceased at the time the beneficiary designation was<br>executed as well as an individual or class member who was then living but who<br>failed to survive the decedent, but excludes a joint tenant of a joint tenancy with<br>the right of survivorship and a party to a joint and survivorship account.c."Beneficiary designation" includes an alternative beneficiary designation and a<br>beneficiary designation in the form of a class gift.d."Class member" includes an individual who fails to survive the decedent but<br>who would have taken under a beneficiary designation in the form of a class gift<br>had the individual survived the decedent.e."Descendant of a grandparent", as used in subsection 2, means an individual<br>who qualifies as a descendant of a grandparent of the decedent under the rules<br>of construction applicable to a class gift created in the decedent's beneficiary<br>designation if the beneficiary designation is in the form of a class gift or rules for<br>intestate succession if the beneficiary designation is not in the form of a class<br>gift.f."Descendants", as used in the phrase "surviving descendants" of a deceased<br>beneficiary or class member in subdivisions a and b of subsection 2, mean the<br>descendants of a deceased beneficiary or class member who would take under<br>a class gift created in the beneficiary designation.Page No. 4g."Stepchild" means a child of the decedent's surviving, deceased, or former<br>spouse, and not of the decedent.h."Surviving" in the phrase "surviving beneficiary" or "surviving descendant"<br>means a beneficiary or a descendant who neither predeceased the decedent<br>nor is deemed to have predeceased the decedent under section 30.1-09.1-02.2.If a beneficiary fails to survive the decedent and is a grandparent, a descendant of a<br>grandparent, or a stepchild of the decedent, the following apply:a.Except as provided in subdivision d, if the beneficiary designation is not in the<br>form of a class gift and the deceased beneficiary leaves surviving descendants,<br>a substitute gift is created in the beneficiary's surviving descendants. They take<br>by representation the property to which the beneficiary would have been<br>entitled had the beneficiary survived the decedent.b.Except as provided in subdivision d, if the beneficiary designation is in the form<br>of a class gift, other than a beneficiary designation to "issue", "descendants",<br>"heirs of the body", "heirs", "next of kin", "relatives", "family", or a class<br>described by language of similar import, a substitute gift is created in the<br>surviving descendants of any deceased beneficiary. The property to which the<br>beneficiaries would have been entitled had all of them survived the decedent<br>passes to the surviving beneficiaries and the surviving descendants of the<br>deceased beneficiaries. Each surviving beneficiary takes the share to which<br>the surviving beneficiary would have been entitled had the deceased<br>beneficiaries survived the decedent.Each deceased beneficiary's survivingdescendants who are substituted for the deceased beneficiary take by<br>representation the share to which the deceased beneficiary would have been<br>entitled had the deceased beneficiary survived the decedent. For the purposes<br>of this subdivision, "deceased beneficiary" means a class member who failed to<br>survive the decedent and left one or more surviving descendants.c.For purposes of section 30.1-09.1-01, words of survivorship, such as in a<br>beneficiary designation to an individual "if the individual survives me", or in a<br>beneficiary designation to "my surviving children", are not, in the absence of<br>additional evidence, a sufficient indication of an intent contrary to the<br>application of this section.d.If a governing instrument creates an alternative beneficiary designation with<br>respect to a beneficiary designation for which a substitute gift is created by<br>subdivision a or b, the substitute gift is superseded by the alternative<br>beneficiary designation if:(1)The alternative beneficiary designation is in the form of a class gift and<br>one or more members of the class is entitled to take; or(2)The alternative beneficiary designation is not in the form of a class gift<br>and the expressly designated beneficiary of the alternative beneficiary<br>designation is entitled to take.3.If, under subsection 2, substitute gifts are created and not superseded with respect<br>to more than one beneficiary designation, and the beneficiary designations are<br>alternative beneficiary designations, one to the other, the determination of which of<br>the substitute gifts takes effect is resolved as follows:a.Except as provided in subdivision b, the property passes under the primary<br>substitute gift.Page No. 5b.If there is a younger-generation beneficiary designation, the property passes<br>under the younger-generation substitute gift and not under the primary<br>substitute gift.c.In this subsection:(1)"Primary beneficiary designation" means the beneficiary designation that<br>would have taken effect had all the deceased beneficiaries of the<br>alternative beneficiary designations who left surviving descendants<br>survived the decedent.(2)"Primary substitute gift" means the substitute gift created with respect to<br>the primary beneficiary designation.(3)"Younger-generation beneficiary designation" means a beneficiary<br>designation that is to a descendant of a beneficiary of the primary<br>beneficiary designation, is an alternative beneficiary designation with<br>respect to the primary beneficiary designation, is a beneficiary<br>designation for which a substitute gift is created, and would have taken<br>effect had all the deceased beneficiaries who left surviving descendants<br>survived the decedent except the deceased beneficiary or beneficiaries<br>of the primary beneficiary designation.(4)"Younger-generation substitute gift" means the substitute gift created<br>with respect to the younger-generation beneficiary designation.4.a.A payer is protected from liability in making payments under the terms of the<br>beneficiary designation until the payer has received written notice of a claim to<br>a substitute gift under this section. Payment made before the receipt of written<br>notice of a claim to a substitute gift under this section discharges the payer, but<br>not the recipient, from all claims for the amounts paid. A payer is liable for a<br>payment made after the payer has received written notice of the claim.Arecipient is liable for a payment received, whether or not written notice of the<br>claim is given.b.The written notice of the claim must be mailed to the payer's main office or<br>home by registered mail, return receipt requested, or served upon the payer in<br>the same manner as a summons in a civil action. Upon receipt of written notice<br>of the claim, a payer may pay any amount owed by it to the court having<br>jurisdiction of the probate proceedings relating to the decedent's estate or, if no<br>proceedings have been commenced, to the court having jurisdiction of probate<br>proceedings relating to decedents' estates located in the county of the<br>decedent's residence.The court shall hold the funds and, upon itsdetermination under this section, shall order disbursement in accordance with<br>the determination. Payment made to the court discharges the payer from all<br>claims for the amounts paid.5.a.A person who purchases property for value and without notice, or who receives<br>a payment or other item of property in partial or full satisfaction of a legally<br>enforceable obligation, is neither obligated under this section to return the<br>payment, item of property, or benefit nor is liable under this section for the<br>amount of the payment or the value of the item of property or benefit. But a<br>person who, not for value, receives a payment, item of property, or any other<br>benefit to which the person is not entitled under this section is obligated to<br>return the payment, item of property, or benefit, or is personally liable for the<br>amount of the payment or the value of the item or property or benefit, to the<br>person who is entitled to it under this section.Page No. 6b.If this section or any part of this section is preempted by federal law with<br>respect to a payment, an item of property, or any other benefit covered by this<br>section, a person who, not for value, receives the payment, item of property, or<br>any other benefit to which the person is not entitled under this section is<br>obligated to return the payment, item of property, or benefit, or is personally<br>liable for the amount of the payment or the value of the item of property or<br>benefit, to the person who would have been entitled to it were this section or<br>part of this section not preempted.30.1-09.1-07. (2-707) Survivorship with respect to future interests under the termsof a trust - Substitute takers.1.In this section:a."Alternative future interest" means to an expressly created future interest that<br>can take effect in possession or enjoyment instead of another future interest on<br>the happening of one or more events, including survival of an event or failure to<br>survive an event, whether an event is expressed in condition-precedent,<br>condition-subsequent, or any other form. A residuary clause in a will does not<br>create an alternative future interest with respect to a future interest created in a<br>nonresiduary devise in the will, whether or not the will specifically provides that<br>lapsed or failed devises are to pass under the residuary clause.b."Beneficiary" means the beneficiary of a future interest and includes a class<br>member if the future interest is in the form of a class gift.c."Class member" includes an individual who fails to survive the distribution date<br>but who would have taken under a future interest in the form of a class gift had<br>the individual survived the distribution date.d."Descendants", in the phrase "surviving descendants" of a deceased<br>beneficiary or class member in subdivisions a and b of subsection 2, mean the<br>descendants of a deceased beneficiary or class member who would take under<br>a class gift created in the trust.e."Distribution date", with respect to a future interest, means the time when the<br>future interest is to take effect in possession or enjoyment. The distribution<br>date need not occur at the beginning or end of a calendar day, but can occur at<br>a time during the course of a day.f."Future interest" includes an alternative future interest and a future interest in<br>the form of a class gift.g."Future interest under the terms of a trust" means a future interest that was<br>created by a transfer creating a trust or to an existing trust or by an exercise of<br>a power of appointment to an existing trust, directing the continuance of an<br>existing trust, designating a beneficiary of an existing trust, or creating a trust.h."Surviving" in the phrase "surviving beneficiary" or "surviving descendant"<br>means a beneficiary or a descendant who neither predeceased the distribution<br>date nor is deemed to have predeceased the distribution date under section<br>30.1-09.1-02.2.A future interest under the terms of a trust is contingent on the beneficiary's surviving<br>the distribution date. If a beneficiary of a future interest under the terms of a trust<br>fails to survive the distribution date, the following apply:a.Except as provided in subdivision d, if the future interest is not in the form of a<br>class gift and the deceased beneficiary leaves surviving descendants, aPage No. 7substitute gift is created in the beneficiary's surviving descendants. They take<br>by representation the property to which the beneficiary would have been<br>entitled had the beneficiary survived the distribution date.b.Except as provided in subdivision d, if the future interest is in the form of a class<br>gift, other than a future interest to "issue", "descendants", "heirs of the body",<br>"heirs", "next of kin", "relatives", or "family", or a class described by language of<br>similar import, a substitute gift is created in the surviving descendants of any<br>deceased beneficiary. The property to which the beneficiaries would have been<br>entitled had all of them survived the distribution date passes to the surviving<br>beneficiaries and the surviving descendants of the deceased beneficiaries.<br>Each surviving beneficiary takes the share to which the surviving beneficiary<br>would have been entitled had the deceased beneficiaries survived the<br>distribution date. Each deceased beneficiary's surviving descendants who are<br>substituted for the deceased beneficiary take by representation the share to<br>which the deceased beneficiary would have been entitled had the deceased<br>beneficiary survived the distribution date. For the purposes of this subdivision,<br>"deceased beneficiary" means a class member who failed to survive the<br>distribution date and left one or more surviving descendants.c.For purposes of section 30.1-09.1-01, words of survivorship attached to a future<br>interest are not, in the absence of additional evidence, a sufficient indication of<br>an intent contrary to the application of this section.Words of survivorshipinclude words of survivorship that relate to the distribution date or to an earlier<br>or an unspecified time, whether those words of survivorship are expressed in<br>condition-precedent, condition-subsequent, or any other form.d.If a governing instrument creates an alternative future interest with respect to a<br>future interest for which a substitute gift is created by subdivision a or b, the<br>substitute gift is superseded by the alternative future interest if:(1)The alternative future interest is in the form of a class gift and one or<br>more members of the class is entitled to take in possession or<br>enjoyment; or(2)The alternative future interest is not in the form of a class gift and the<br>expressly designated beneficiary of the alternative future interest is<br>entitled to take in possession or enjoyment.3.If, under subsection 2, substitute gifts are created and not superseded with respect<br>to more than one future interest and the future interests are alternative future<br>interests, one to the other, the determination of which of the substitute gifts takes<br>effect is resolved as follows:a.Except as provided in subdivision b, the property passes under the primary<br>substitute gift.b.If there is a younger-generation future interest, the property passes under the<br>younger-generation substitute gift and not under the primary substitute gift.c.In this subsection:(1)"Primary future interest" means the future interest that would have taken<br>effect had all the deceased beneficiaries of the alternative future interest<br>who left surviving descendants survived the distribution date.(2)"Primary substitute gift" means the substitute gift created with respect to<br>the primary future interest.Page No. 8(3)"Younger-generation future interest" means a future interest that is to a<br>descendant of a beneficiary of the primary future interest, is an<br>alternative future interest with respect to the primary future interest, is a<br>future interest for which a substitute gift is created, and would have taken<br>effect had all the deceased beneficiaries who left surviving descendants<br>survived the distribution date except the deceased beneficiary of<br>beneficiaries of the primary future interest.(4)"Younger-generation substitute gift" means the substitute gift created<br>with respect to the younger-generation future interest.4.Except as provided in subsection 5, if, after the application of subsections 2 and 3,<br>there is no surviving taker, the property passes in the following order:a.If the trust was created in a nonresiduary devise in the transferor's will or in a<br>codicil to the transferor's will, the property passes under the residuary clause in<br>the transferor's will.For purposes of this section, the residuary clause istreated as creating a future interest under the terms of a trust.b.If no taker is produced by the application of subdivision a, the property passes<br>to the transferor's heirs under section 30.1-09.1-11.5.If, after the application of subsections 2 and 3, there is no surviving taker and if the<br>future interest was created by the exercise of a power of appointment:a.The property passes under the donor's gift-in-default clause, if any, which<br>clause is treated as creating a future interest under the terms of a trust; andb.If no taker is produced by the application of subdivision a, the property passes<br>as provided in subsection 4. For purposes of subsection 4, "transferor" means<br>the donor if the power was a nongeneral power and means the donee if the<br>power was a general power.30.1-09.1-08. (2-708) Class gifts to descendants, issue, or heirs of the body - Formof distribution if none specified. If a class gift in favor of "descendants", "issue", or "heirs of the<br>body" does not specify the manner in which the property is to be distributed among the class<br>members, the property is distributed among the class members who are living when the interest<br>is to take effect in possession or enjoyment, in such shares as they would receive, under the<br>applicable law of intestate succession, if the designated ancestor had then died intestate owning<br>the subject matter of the class gift.30.1-09.1-09. (2-709) Per capita at each generation - Representation - Per stirpes.1.In this section:a."Deceased child" or "deceased descendant" means a child or a descendant<br>who either predeceased the distribution date or is deemed to have<br>predeceased the distribution date under section 30.1-09.1-02.b."Distribution date", with respect to an interest, means the time when the interest<br>is to take effect in possession or enjoyment. The distribution date need not<br>occur at the beginning or end of a calendar day, but can occur at a time during<br>the course of a day.c."Surviving ancestor", "surviving child", or "surviving descendant" means an<br>ancestor, a child, or a descendant who neither predeceased the distribution<br>date nor is deemed to have predeceased the distribution date under section<br>30.1-09.1-02.Page No. 92.If a governing instrument calls for property to be distributed "per capita at each<br>generation", the property is divided into as many equal shares as there are surviving<br>descendants in the generation nearest to the designated ancestor which contains<br>one or more surviving descendants and deceased descendants in the same<br>generation who left surviving descendants, if any. Each surviving descendant in the<br>nearest generation is allocated one share.The remaining shares, if any, arecombined and then divided in the same manner among the surviving descendants of<br>the deceased descendants as if the surviving descendants who were allocated a<br>share and their surviving descendants had predeceased the distribution date.3.If an applicable statute or a governing instrument calls for property to be distributed<br>"by representation" or "per stirpes", the property is divided into as many equal<br>shares as there are surviving children of the designated ancestor and deceased<br>children who left surviving descendants. Each surviving child is allocated one share.<br>The share of each deceased child with surviving descendants is divided in the same<br>manner, with subdivision repeating at each succeeding generation until the property<br>is fully allocated among surviving descendants.4.For the purposes of subsections 2 and 3, an individual who is deceased and left no<br>surviving descendant is disregarded, and an individual who leaves a surviving<br>ancestor who is a descendant of the designated ancestor is not entitled to a share.30.1-09.1-10. (2-710) Worthier-title doctrine abolished. The doctrine of worthier title isabolished as a rule of law and as a rule of construction. Language in a governing instrument<br>describing the beneficiaries of a disposition as the transferor's "heirs", "heirs at law", "next of kin",<br>"distributees", "relatives", "family", or language of similar import does not create or presumptively<br>create a reversionary interest in the transferor.30.1-09.1-11. (2-711) Future interests in heirs and like. If an applicable statute or agoverning instrument calls for a present or future distribution to or creates a present or future<br>interest in a designated individual's "heirs", "heirs at law", "next of kin", "relatives", or "family", or<br>language of similar import, the property passes to those persons, including the state, and in such<br>shares as would succeed to the designated individual's intestate estate under the intestate<br>succession law of the designated individual's domicile if the designated individual died when the<br>disposition is to take effect in possession or enjoyment. If the designated individual's surviving<br>spouse is living but is remarried at the time the disposition is to take effect in possession or<br>enjoyment, the surviving spouse is not an heir of the designated individual.Page No. 10Document Outlinechapter 30.1-09.1 rules of construction of governing instrument
CHAPTER 30.1-09.1RULES OF CONSTRUCTION OF GOVERNING INSTRUMENT30.1-09.1-01. (2-701) Scope. In the absence of a finding of a contrary intention, therules of construction in this chapter control the construction of a governing instrument. The rules<br>of construction in this chapter apply to a governing instrument of any type, except as the<br>application of a particular section is limited by its terms to a specific type or types of provisions or<br>governing instrument.30.1-09.1-02. (2-702) Requirement of survival by one hundred twenty hours.1.For the purposes of this title, except as provided in subsection 4, an individual who is<br>not established by clear and convincing evidence to have survived an event,<br>including the death of another individual, by one hundred twenty hours is deemed to<br>have predeceased the event.2.Except as provided in subsection 4, for purposes of a provision of a governing<br>instrument that relates to an individual surviving an event, including the death of<br>another individual, an individual who is not established by clear and convincing<br>evidence to have survived the event by one hundred twenty hours is deemed to<br>have predeceased the event.3.Except as provided in subsection 4, if it is not established by clear and convincing<br>evidence that one of two coowners with right of survivorship survived the other<br>coowner by one hundred twenty hours, one-half of the property passes as if one had<br>survived by one hundred twenty hours and one-half as if the other had survived by<br>one hundred twenty hours and there are more than two coowners and it is not<br>established by clear and convincing evidence that at least one of them survived the<br>others by one hundred twenty hours, the property passes in the proportion that one<br>bears to the whole number of coowners. For purposes of this subsection, the term<br>"coowners with right of survivorship" includes joint tenants, tenants by the entireties,<br>and other coowners of property or accounts held under circumstances that entitles<br>one or more to the whole of the property or account on the death of the other or<br>others.4.Survival by one hundred twenty hours is not required if:a.The governing instrument contains some language dealing explicitly with<br>simultaneous deaths or deaths in a common disaster and that language is<br>operable under the facts of the case;b.The governing instrument expressly indicates that an individual is not required<br>to survive an event, including the death of another individual, by any specific<br>period or expressly requires the individual to survive the event by a specific<br>period, but survival of the event or the specified period must be established by<br>clear and convincing evidence;c.Imposition of a one-hundred-twenty-hour requirement of survival would cause a<br>nonvested property interest or a power of appointment to fail to qualify for<br>validity under subdivision a of subsection 1, subdivision a of subsection 2, or<br>subdivision a of subsection 3 of section 47-02-27.1, or to become invalid under<br>subdivision b of subsection 1, subdivision b of subsection 2, or subdivision b of<br>subsection 3 of section 47-02-27.1, but survival must be established by clear<br>and convincing evidence; ord.The application of a one-hundred-twenty-hour requirement of survival to<br>multiple governing instruments would result in an unintended failure orPage No. 1duplication of a disposition, but survival must be established by clear and<br>convincing evidence.5.a.A payer or other third party is not liable for having made a payment or<br>transferred an item of property or any other benefit to a beneficiary designated<br>in a governing instrument who, under this section, is not entitled to the payment<br>or item of property, or for having taken any other action in good-faith reliance<br>on the beneficiary's apparent entitlement under the terms of the governing<br>instrument, before the payer or other third party received written notice of a<br>claimed lack of entitlement under this section. A payer or other third party is<br>liable for a payment made or other action taken after the payer or other third<br>party received written notice of a claimed lack of entitlement under this section.b.Written notice of a claimed lack of entitlement under subdivision a must be<br>mailed to the payer's or other third party's main office or home by registered<br>mail or served upon the payer or other third party in the same manner as a<br>summons in a civil action. Upon receipt of written notice of a claimed lack of<br>entitlement under this section, a payer or other third party may pay any amount<br>owed or transfer or deposit any item of property held by it to or with the court<br>having jurisdiction of the probate proceedings relating to the decedent's estate,<br>or if no proceedings have been commenced, to or with the court having<br>jurisdiction of probate proceedings relating to decedents' estates located in the<br>county of the decedent's residence. The court shall hold the funds or item of<br>property and, upon its determination under this section, shall order<br>disbursement in accordance with the determination. Payments, transfers, or<br>deposits made to or with the court discharge the payer or other third party from<br>all claims for the value of amounts paid to or items of property transferred to or<br>deposited with the court.6.a.A person who purchases property for value and without notice, or who receives<br>a payment or other item of property in partial or full satisfaction of a legally<br>enforceable obligation, is neither obligated under this section to return the<br>payment, item of property, or benefit nor is liable under this section for the<br>amount of the payment or the value of the item of property or benefit. But a<br>person who, not for value, receives a payment, item of property, or any other<br>benefit to which the person is not entitled under this section is obligated to<br>return the payment, item of property, or benefit, or is personally liable for the<br>amount of the payment or the value of the item of property or benefit, to the<br>person who is entitled to it under this section.b.If this section or any part of this section is preempted by federal law with<br>respect to a payment, an item of property, or any other benefit covered by this<br>section, a person who, not for value, receives the payment, item of property, or<br>any other benefit to which the person is not entitled under this section is<br>obligated to return the payment, item of property, or benefit, or is personally<br>liable for the amount of the payment or the value of the item of property or<br>benefit, to the person who would have been entitled to it were this section or<br>part of this section not preempted.30.1-09.1-03.(2-703) Choice of law as to meaning and effect of governinginstrument. The meaning and legal effect of a governing instrument is determined by the local<br>law of the state selected by the transferor in the governing instrument, unless the application of<br>that law is contrary to the provisions relating to the elective share described in chapter 30.1-05,<br>the provisions relating to exempt property and allowances described in chapter 30.1-07, or any<br>other public policy of this state otherwise applicable to the disposition.30.1-09.1-04.(2-704) Power of appointment - Meaning of specific referencerequirement. If a governing instrument creating a power of appointment expressly requires that<br>the power be exercised by a reference, an express reference, or a specific reference, to thePage No. 2power or its source, it is presumed that the donor's intention, in requiring that the donee exercise<br>the power by making reference to the particular power or to the creating instrument, was to<br>prevent an inadvertent exercise of the power.30.1-09.1-05. (2-705) Class gifts construed to accord with intestate succession -Exceptions.1.In this section: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<br>30.1-04-19.c."Distribution date" means the time when an immediate or a postponed class gift<br>is to take effect in possession or enjoyment.d."Functioned as a parent of the adoptee" has the meaning set forth in section<br>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<br>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<br>provided in subsections 3 and 4, an adoptee and a child born to parents not married<br>to each other, and their respective descendants if appropriate to the class, are<br>included in class gifts and other terms of relationship in accordance with the rules for<br>intestate succession. Terms of relationship in a governing instrument which do not<br>differentiate relationships by the half blood from those by the whole blood, such as<br>brothers, sisters, nieces, or nephews, are construed to include both types of<br>relationships.Terms of relationship in a governing instrument that do notdifferentiate relationships by blood from those by marriage, such as uncles, aunts,<br>nieces, or nephews, are construed to exclude relatives by marriage unless:a.When the governing instrument was executed, the class was then and<br>foreseeably would be empty; orb.The language or circumstances otherwise establish that relatives by marriage<br>were intended to be included.3.In construing a dispositive provision of a transferor who is not the genetic parent, a<br>child of a genetic parent is not considered the child of that parent unless the parent,<br>a relative of the genetic parent, or the spouse or surviving spouse of a relative of the<br>genetic parent functioned as a parent of the child before the child reached eighteen<br>years of age.4.In construing a dispositive provision of a transferor who is not the adoptive parent,<br>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; orPage No. 3c.The adoptive parent functioned as a parent of the adoptee before the adoptee<br>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<br>lives one hundred twenty hours after birth.b.If a child of assisted reproduction or a gestational child is conceived<br>posthumously and the distribution date is the deceased parent's death, the child<br>is treated as living on the distribution date if the child lives one hundred twenty<br>hours after birth and was in utero not later than thirty-six months after the<br>deceased parent's death or born not later than forty-five months after the<br>deceased parent's death.c.An individual who is in the process of being adopted when the class closes is<br>treated as adopted when the class closes if the adoption is subsequently<br>granted.30.1-09.1-06. (2-706) Life insurance - Retirement plan - Account with payable ondeath designation - Transfer-on-death registration - Deceased beneficiary.1.In this section:a."Alternative beneficiary designation" means a beneficiary designation that is<br>expressly created by the governing instrument and, under the terms of the<br>governing instrument, can take effect instead of another beneficiary designation<br>on the happening of one or more events, including survival of the decedent or<br>failuretosurvivethedecedent, whether an event is expressed incondition-precedent, condition-subsequent, or any other form.b."Beneficiary" means the beneficiary of a beneficiary designation under which<br>the beneficiary must survive the decedent and includes a class member if the<br>beneficiary designation is in the form of a class gift and includes an individual or<br>class member who was deceased at the time the beneficiary designation was<br>executed as well as an individual or class member who was then living but who<br>failed to survive the decedent, but excludes a joint tenant of a joint tenancy with<br>the right of survivorship and a party to a joint and survivorship account.c."Beneficiary designation" includes an alternative beneficiary designation and a<br>beneficiary designation in the form of a class gift.d."Class member" includes an individual who fails to survive the decedent but<br>who would have taken under a beneficiary designation in the form of a class gift<br>had the individual survived the decedent.e."Descendant of a grandparent", as used in subsection 2, means an individual<br>who qualifies as a descendant of a grandparent of the decedent under the rules<br>of construction applicable to a class gift created in the decedent's beneficiary<br>designation if the beneficiary designation is in the form of a class gift or rules for<br>intestate succession if the beneficiary designation is not in the form of a class<br>gift.f."Descendants", as used in the phrase "surviving descendants" of a deceased<br>beneficiary or class member in subdivisions a and b of subsection 2, mean the<br>descendants of a deceased beneficiary or class member who would take under<br>a class gift created in the beneficiary designation.Page No. 4g."Stepchild" means a child of the decedent's surviving, deceased, or former<br>spouse, and not of the decedent.h."Surviving" in the phrase "surviving beneficiary" or "surviving descendant"<br>means a beneficiary or a descendant who neither predeceased the decedent<br>nor is deemed to have predeceased the decedent under section 30.1-09.1-02.2.If a beneficiary fails to survive the decedent and is a grandparent, a descendant of a<br>grandparent, or a stepchild of the decedent, the following apply:a.Except as provided in subdivision d, if the beneficiary designation is not in the<br>form of a class gift and the deceased beneficiary leaves surviving descendants,<br>a substitute gift is created in the beneficiary's surviving descendants. They take<br>by representation the property to which the beneficiary would have been<br>entitled had the beneficiary survived the decedent.b.Except as provided in subdivision d, if the beneficiary designation is in the form<br>of a class gift, other than a beneficiary designation to "issue", "descendants",<br>"heirs of the body", "heirs", "next of kin", "relatives", "family", or a class<br>described by language of similar import, a substitute gift is created in the<br>surviving descendants of any deceased beneficiary. The property to which the<br>beneficiaries would have been entitled had all of them survived the decedent<br>passes to the surviving beneficiaries and the surviving descendants of the<br>deceased beneficiaries. Each surviving beneficiary takes the share to which<br>the surviving beneficiary would have been entitled had the deceased<br>beneficiaries survived the decedent.Each deceased beneficiary's survivingdescendants who are substituted for the deceased beneficiary take by<br>representation the share to which the deceased beneficiary would have been<br>entitled had the deceased beneficiary survived the decedent. For the purposes<br>of this subdivision, "deceased beneficiary" means a class member who failed to<br>survive the decedent and left one or more surviving descendants.c.For purposes of section 30.1-09.1-01, words of survivorship, such as in a<br>beneficiary designation to an individual "if the individual survives me", or in a<br>beneficiary designation to "my surviving children", are not, in the absence of<br>additional evidence, a sufficient indication of an intent contrary to the<br>application of this section.d.If a governing instrument creates an alternative beneficiary designation with<br>respect to a beneficiary designation for which a substitute gift is created by<br>subdivision a or b, the substitute gift is superseded by the alternative<br>beneficiary designation if:(1)The alternative beneficiary designation is in the form of a class gift and<br>one or more members of the class is entitled to take; or(2)The alternative beneficiary designation is not in the form of a class gift<br>and the expressly designated beneficiary of the alternative beneficiary<br>designation is entitled to take.3.If, under subsection 2, substitute gifts are created and not superseded with respect<br>to more than one beneficiary designation, and the beneficiary designations are<br>alternative beneficiary designations, one to the other, the determination of which of<br>the substitute gifts takes effect is resolved as follows:a.Except as provided in subdivision b, the property passes under the primary<br>substitute gift.Page No. 5b.If there is a younger-generation beneficiary designation, the property passes<br>under the younger-generation substitute gift and not under the primary<br>substitute gift.c.In this subsection:(1)"Primary beneficiary designation" means the beneficiary designation that<br>would have taken effect had all the deceased beneficiaries of the<br>alternative beneficiary designations who left surviving descendants<br>survived the decedent.(2)"Primary substitute gift" means the substitute gift created with respect to<br>the primary beneficiary designation.(3)"Younger-generation beneficiary designation" means a beneficiary<br>designation that is to a descendant of a beneficiary of the primary<br>beneficiary designation, is an alternative beneficiary designation with<br>respect to the primary beneficiary designation, is a beneficiary<br>designation for which a substitute gift is created, and would have taken<br>effect had all the deceased beneficiaries who left surviving descendants<br>survived the decedent except the deceased beneficiary or beneficiaries<br>of the primary beneficiary designation.(4)"Younger-generation substitute gift" means the substitute gift created<br>with respect to the younger-generation beneficiary designation.4.a.A payer is protected from liability in making payments under the terms of the<br>beneficiary designation until the payer has received written notice of a claim to<br>a substitute gift under this section. Payment made before the receipt of written<br>notice of a claim to a substitute gift under this section discharges the payer, but<br>not the recipient, from all claims for the amounts paid. A payer is liable for a<br>payment made after the payer has received written notice of the claim.Arecipient is liable for a payment received, whether or not written notice of the<br>claim is given.b.The written notice of the claim must be mailed to the payer's main office or<br>home by registered mail, return receipt requested, or served upon the payer in<br>the same manner as a summons in a civil action. Upon receipt of written notice<br>of the claim, a payer may pay any amount owed by it to the court having<br>jurisdiction of the probate proceedings relating to the decedent's estate or, if no<br>proceedings have been commenced, to the court having jurisdiction of probate<br>proceedings relating to decedents' estates located in the county of the<br>decedent's residence.The court shall hold the funds and, upon itsdetermination under this section, shall order disbursement in accordance with<br>the determination. Payment made to the court discharges the payer from all<br>claims for the amounts paid.5.a.A person who purchases property for value and without notice, or who receives<br>a payment or other item of property in partial or full satisfaction of a legally<br>enforceable obligation, is neither obligated under this section to return the<br>payment, item of property, or benefit nor is liable under this section for the<br>amount of the payment or the value of the item of property or benefit. But a<br>person who, not for value, receives a payment, item of property, or any other<br>benefit to which the person is not entitled under this section is obligated to<br>return the payment, item of property, or benefit, or is personally liable for the<br>amount of the payment or the value of the item or property or benefit, to the<br>person who is entitled to it under this section.Page No. 6b.If this section or any part of this section is preempted by federal law with<br>respect to a payment, an item of property, or any other benefit covered by this<br>section, a person who, not for value, receives the payment, item of property, or<br>any other benefit to which the person is not entitled under this section is<br>obligated to return the payment, item of property, or benefit, or is personally<br>liable for the amount of the payment or the value of the item of property or<br>benefit, to the person who would have been entitled to it were this section or<br>part of this section not preempted.30.1-09.1-07. (2-707) Survivorship with respect to future interests under the termsof a trust - Substitute takers.1.In this section:a."Alternative future interest" means to an expressly created future interest that<br>can take effect in possession or enjoyment instead of another future interest on<br>the happening of one or more events, including survival of an event or failure to<br>survive an event, whether an event is expressed in condition-precedent,<br>condition-subsequent, or any other form. A residuary clause in a will does not<br>create an alternative future interest with respect to a future interest created in a<br>nonresiduary devise in the will, whether or not the will specifically provides that<br>lapsed or failed devises are to pass under the residuary clause.b."Beneficiary" means the beneficiary of a future interest and includes a class<br>member if the future interest is in the form of a class gift.c."Class member" includes an individual who fails to survive the distribution date<br>but who would have taken under a future interest in the form of a class gift had<br>the individual survived the distribution date.d."Descendants", in the phrase "surviving descendants" of a deceased<br>beneficiary or class member in subdivisions a and b of subsection 2, mean the<br>descendants of a deceased beneficiary or class member who would take under<br>a class gift created in the trust.e."Distribution date", with respect to a future interest, means the time when the<br>future interest is to take effect in possession or enjoyment. The distribution<br>date need not occur at the beginning or end of a calendar day, but can occur at<br>a time during the course of a day.f."Future interest" includes an alternative future interest and a future interest in<br>the form of a class gift.g."Future interest under the terms of a trust" means a future interest that was<br>created by a transfer creating a trust or to an existing trust or by an exercise of<br>a power of appointment to an existing trust, directing the continuance of an<br>existing trust, designating a beneficiary of an existing trust, or creating a trust.h."Surviving" in the phrase "surviving beneficiary" or "surviving descendant"<br>means a beneficiary or a descendant who neither predeceased the distribution<br>date nor is deemed to have predeceased the distribution date under section<br>30.1-09.1-02.2.A future interest under the terms of a trust is contingent on the beneficiary's surviving<br>the distribution date. If a beneficiary of a future interest under the terms of a trust<br>fails to survive the distribution date, the following apply:a.Except as provided in subdivision d, if the future interest is not in the form of a<br>class gift and the deceased beneficiary leaves surviving descendants, aPage No. 7substitute gift is created in the beneficiary's surviving descendants. They take<br>by representation the property to which the beneficiary would have been<br>entitled had the beneficiary survived the distribution date.b.Except as provided in subdivision d, if the future interest is in the form of a class<br>gift, other than a future interest to "issue", "descendants", "heirs of the body",<br>"heirs", "next of kin", "relatives", or "family", or a class described by language of<br>similar import, a substitute gift is created in the surviving descendants of any<br>deceased beneficiary. The property to which the beneficiaries would have been<br>entitled had all of them survived the distribution date passes to the surviving<br>beneficiaries and the surviving descendants of the deceased beneficiaries.<br>Each surviving beneficiary takes the share to which the surviving beneficiary<br>would have been entitled had the deceased beneficiaries survived the<br>distribution date. Each deceased beneficiary's surviving descendants who are<br>substituted for the deceased beneficiary take by representation the share to<br>which the deceased beneficiary would have been entitled had the deceased<br>beneficiary survived the distribution date. For the purposes of this subdivision,<br>"deceased beneficiary" means a class member who failed to survive the<br>distribution date and left one or more surviving descendants.c.For purposes of section 30.1-09.1-01, words of survivorship attached to a future<br>interest are not, in the absence of additional evidence, a sufficient indication of<br>an intent contrary to the application of this section.Words of survivorshipinclude words of survivorship that relate to the distribution date or to an earlier<br>or an unspecified time, whether those words of survivorship are expressed in<br>condition-precedent, condition-subsequent, or any other form.d.If a governing instrument creates an alternative future interest with respect to a<br>future interest for which a substitute gift is created by subdivision a or b, the<br>substitute gift is superseded by the alternative future interest if:(1)The alternative future interest is in the form of a class gift and one or<br>more members of the class is entitled to take in possession or<br>enjoyment; or(2)The alternative future interest is not in the form of a class gift and the<br>expressly designated beneficiary of the alternative future interest is<br>entitled to take in possession or enjoyment.3.If, under subsection 2, substitute gifts are created and not superseded with respect<br>to more than one future interest and the future interests are alternative future<br>interests, one to the other, the determination of which of the substitute gifts takes<br>effect is resolved as follows:a.Except as provided in subdivision b, the property passes under the primary<br>substitute gift.b.If there is a younger-generation future interest, the property passes under the<br>younger-generation substitute gift and not under the primary substitute gift.c.In this subsection:(1)"Primary future interest" means the future interest that would have taken<br>effect had all the deceased beneficiaries of the alternative future interest<br>who left surviving descendants survived the distribution date.(2)"Primary substitute gift" means the substitute gift created with respect to<br>the primary future interest.Page No. 8(3)"Younger-generation future interest" means a future interest that is to a<br>descendant of a beneficiary of the primary future interest, is an<br>alternative future interest with respect to the primary future interest, is a<br>future interest for which a substitute gift is created, and would have taken<br>effect had all the deceased beneficiaries who left surviving descendants<br>survived the distribution date except the deceased beneficiary of<br>beneficiaries of the primary future interest.(4)"Younger-generation substitute gift" means the substitute gift created<br>with respect to the younger-generation future interest.4.Except as provided in subsection 5, if, after the application of subsections 2 and 3,<br>there is no surviving taker, the property passes in the following order:a.If the trust was created in a nonresiduary devise in the transferor's will or in a<br>codicil to the transferor's will, the property passes under the residuary clause in<br>the transferor's will.For purposes of this section, the residuary clause istreated as creating a future interest under the terms of a trust.b.If no taker is produced by the application of subdivision a, the property passes<br>to the transferor's heirs under section 30.1-09.1-11.5.If, after the application of subsections 2 and 3, there is no surviving taker and if the<br>future interest was created by the exercise of a power of appointment:a.The property passes under the donor's gift-in-default clause, if any, which<br>clause is treated as creating a future interest under the terms of a trust; andb.If no taker is produced by the application of subdivision a, the property passes<br>as provided in subsection 4. For purposes of subsection 4, "transferor" means<br>the donor if the power was a nongeneral power and means the donee if the<br>power was a general power.30.1-09.1-08. (2-708) Class gifts to descendants, issue, or heirs of the body - Formof distribution if none specified. If a class gift in favor of "descendants", "issue", or "heirs of the<br>body" does not specify the manner in which the property is to be distributed among the class<br>members, the property is distributed among the class members who are living when the interest<br>is to take effect in possession or enjoyment, in such shares as they would receive, under the<br>applicable law of intestate succession, if the designated ancestor had then died intestate owning<br>the subject matter of the class gift.30.1-09.1-09. (2-709) Per capita at each generation - Representation - Per stirpes.1.In this section:a."Deceased child" or "deceased descendant" means a child or a descendant<br>who either predeceased the distribution date or is deemed to have<br>predeceased the distribution date under section 30.1-09.1-02.b."Distribution date", with respect to an interest, means the time when the interest<br>is to take effect in possession or enjoyment. The distribution date need not<br>occur at the beginning or end of a calendar day, but can occur at a time during<br>the course of a day.c."Surviving ancestor", "surviving child", or "surviving descendant" means an<br>ancestor, a child, or a descendant who neither predeceased the distribution<br>date nor is deemed to have predeceased the distribution date under section<br>30.1-09.1-02.Page No. 92.If a governing instrument calls for property to be distributed "per capita at each<br>generation", the property is divided into as many equal shares as there are surviving<br>descendants in the generation nearest to the designated ancestor which contains<br>one or more surviving descendants and deceased descendants in the same<br>generation who left surviving descendants, if any. Each surviving descendant in the<br>nearest generation is allocated one share.The remaining shares, if any, arecombined and then divided in the same manner among the surviving descendants of<br>the deceased descendants as if the surviving descendants who were allocated a<br>share and their surviving descendants had predeceased the distribution date.3.If an applicable statute or a governing instrument calls for property to be distributed<br>"by representation" or "per stirpes", the property is divided into as many equal<br>shares as there are surviving children of the designated ancestor and deceased<br>children who left surviving descendants. Each surviving child is allocated one share.<br>The share of each deceased child with surviving descendants is divided in the same<br>manner, with subdivision repeating at each succeeding generation until the property<br>is fully allocated among surviving descendants.4.For the purposes of subsections 2 and 3, an individual who is deceased and left no<br>surviving descendant is disregarded, and an individual who leaves a surviving<br>ancestor who is a descendant of the designated ancestor is not entitled to a share.30.1-09.1-10. (2-710) Worthier-title doctrine abolished. The doctrine of worthier title isabolished as a rule of law and as a rule of construction. Language in a governing instrument<br>describing the beneficiaries of a disposition as the transferor's "heirs", "heirs at law", "next of kin",<br>"distributees", "relatives", "family", or language of similar import does not create or presumptively<br>create a reversionary interest in the transferor.30.1-09.1-11. (2-711) Future interests in heirs and like. If an applicable statute or agoverning instrument calls for a present or future distribution to or creates a present or future<br>interest in a designated individual's "heirs", "heirs at law", "next of kin", "relatives", or "family", or<br>language of similar import, the property passes to those persons, including the state, and in such<br>shares as would succeed to the designated individual's intestate estate under the intestate<br>succession law of the designated individual's domicile if the designated individual died when the<br>disposition is to take effect in possession or enjoyment. If the designated individual's surviving<br>spouse is living but is remarried at the time the disposition is to take effect in possession or<br>enjoyment, the surviving spouse is not an heir of the designated individual.Page No. 10Document Outlinechapter 30.1-09.1 rules of construction of governing instrument
CHAPTER 30.1-09.1RULES OF CONSTRUCTION OF GOVERNING INSTRUMENT30.1-09.1-01. (2-701) Scope. In the absence of a finding of a contrary intention, therules of construction in this chapter control the construction of a governing instrument. The rules<br>of construction in this chapter apply to a governing instrument of any type, except as the<br>application of a particular section is limited by its terms to a specific type or types of provisions or<br>governing instrument.30.1-09.1-02. (2-702) Requirement of survival by one hundred twenty hours.1.For the purposes of this title, except as provided in subsection 4, an individual who is<br>not established by clear and convincing evidence to have survived an event,<br>including the death of another individual, by one hundred twenty hours is deemed to<br>have predeceased the event.2.Except as provided in subsection 4, for purposes of a provision of a governing<br>instrument that relates to an individual surviving an event, including the death of<br>another individual, an individual who is not established by clear and convincing<br>evidence to have survived the event by one hundred twenty hours is deemed to<br>have predeceased the event.3.Except as provided in subsection 4, if it is not established by clear and convincing<br>evidence that one of two coowners with right of survivorship survived the other<br>coowner by one hundred twenty hours, one-half of the property passes as if one had<br>survived by one hundred twenty hours and one-half as if the other had survived by<br>one hundred twenty hours and there are more than two coowners and it is not<br>established by clear and convincing evidence that at least one of them survived the<br>others by one hundred twenty hours, the property passes in the proportion that one<br>bears to the whole number of coowners. For purposes of this subsection, the term<br>"coowners with right of survivorship" includes joint tenants, tenants by the entireties,<br>and other coowners of property or accounts held under circumstances that entitles<br>one or more to the whole of the property or account on the death of the other or<br>others.4.Survival by one hundred twenty hours is not required if:a.The governing instrument contains some language dealing explicitly with<br>simultaneous deaths or deaths in a common disaster and that language is<br>operable under the facts of the case;b.The governing instrument expressly indicates that an individual is not required<br>to survive an event, including the death of another individual, by any specific<br>period or expressly requires the individual to survive the event by a specific<br>period, but survival of the event or the specified period must be established by<br>clear and convincing evidence;c.Imposition of a one-hundred-twenty-hour requirement of survival would cause a<br>nonvested property interest or a power of appointment to fail to qualify for<br>validity under subdivision a of subsection 1, subdivision a of subsection 2, or<br>subdivision a of subsection 3 of section 47-02-27.1, or to become invalid under<br>subdivision b of subsection 1, subdivision b of subsection 2, or subdivision b of<br>subsection 3 of section 47-02-27.1, but survival must be established by clear<br>and convincing evidence; ord.The application of a one-hundred-twenty-hour requirement of survival to<br>multiple governing instruments would result in an unintended failure orPage No. 1duplication of a disposition, but survival must be established by clear and<br>convincing evidence.5.a.A payer or other third party is not liable for having made a payment or<br>transferred an item of property or any other benefit to a beneficiary designated<br>in a governing instrument who, under this section, is not entitled to the payment<br>or item of property, or for having taken any other action in good-faith reliance<br>on the beneficiary's apparent entitlement under the terms of the governing<br>instrument, before the payer or other third party received written notice of a<br>claimed lack of entitlement under this section. A payer or other third party is<br>liable for a payment made or other action taken after the payer or other third<br>party received written notice of a claimed lack of entitlement under this section.b.Written notice of a claimed lack of entitlement under subdivision a must be<br>mailed to the payer's or other third party's main office or home by registered<br>mail or served upon the payer or other third party in the same manner as a<br>summons in a civil action. Upon receipt of written notice of a claimed lack of<br>entitlement under this section, a payer or other third party may pay any amount<br>owed or transfer or deposit any item of property held by it to or with the court<br>having jurisdiction of the probate proceedings relating to the decedent's estate,<br>or if no proceedings have been commenced, to or with the court having<br>jurisdiction of probate proceedings relating to decedents' estates located in the<br>county of the decedent's residence. The court shall hold the funds or item of<br>property and, upon its determination under this section, shall order<br>disbursement in accordance with the determination. Payments, transfers, or<br>deposits made to or with the court discharge the payer or other third party from<br>all claims for the value of amounts paid to or items of property transferred to or<br>deposited with the court.6.a.A person who purchases property for value and without notice, or who receives<br>a payment or other item of property in partial or full satisfaction of a legally<br>enforceable obligation, is neither obligated under this section to return the<br>payment, item of property, or benefit nor is liable under this section for the<br>amount of the payment or the value of the item of property or benefit. But a<br>person who, not for value, receives a payment, item of property, or any other<br>benefit to which the person is not entitled under this section is obligated to<br>return the payment, item of property, or benefit, or is personally liable for the<br>amount of the payment or the value of the item of property or benefit, to the<br>person who is entitled to it under this section.b.If this section or any part of this section is preempted by federal law with<br>respect to a payment, an item of property, or any other benefit covered by this<br>section, a person who, not for value, receives the payment, item of property, or<br>any other benefit to which the person is not entitled under this section is<br>obligated to return the payment, item of property, or benefit, or is personally<br>liable for the amount of the payment or the value of the item of property or<br>benefit, to the person who would have been entitled to it were this section or<br>part of this section not preempted.30.1-09.1-03.(2-703) Choice of law as to meaning and effect of governinginstrument. The meaning and legal effect of a governing instrument is determined by the local<br>law of the state selected by the transferor in the governing instrument, unless the application of<br>that law is contrary to the provisions relating to the elective share described in chapter 30.1-05,<br>the provisions relating to exempt property and allowances described in chapter 30.1-07, or any<br>other public policy of this state otherwise applicable to the disposition.30.1-09.1-04.(2-704) Power of appointment - Meaning of specific referencerequirement. If a governing instrument creating a power of appointment expressly requires that<br>the power be exercised by a reference, an express reference, or a specific reference, to thePage No. 2power or its source, it is presumed that the donor's intention, in requiring that the donee exercise<br>the power by making reference to the particular power or to the creating instrument, was to<br>prevent an inadvertent exercise of the power.30.1-09.1-05. (2-705) Class gifts construed to accord with intestate succession -Exceptions.1.In this section: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<br>30.1-04-19.c."Distribution date" means the time when an immediate or a postponed class gift<br>is to take effect in possession or enjoyment.d."Functioned as a parent of the adoptee" has the meaning set forth in section<br>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<br>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<br>provided in subsections 3 and 4, an adoptee and a child born to parents not married<br>to each other, and their respective descendants if appropriate to the class, are<br>included in class gifts and other terms of relationship in accordance with the rules for<br>intestate succession. Terms of relationship in a governing instrument which do not<br>differentiate relationships by the half blood from those by the whole blood, such as<br>brothers, sisters, nieces, or nephews, are construed to include both types of<br>relationships.Terms of relationship in a governing instrument that do notdifferentiate relationships by blood from those by marriage, such as uncles, aunts,<br>nieces, or nephews, are construed to exclude relatives by marriage unless:a.When the governing instrument was executed, the class was then and<br>foreseeably would be empty; orb.The language or circumstances otherwise establish that relatives by marriage<br>were intended to be included.3.In construing a dispositive provision of a transferor who is not the genetic parent, a<br>child of a genetic parent is not considered the child of that parent unless the parent,<br>a relative of the genetic parent, or the spouse or surviving spouse of a relative of the<br>genetic parent functioned as a parent of the child before the child reached eighteen<br>years of age.4.In construing a dispositive provision of a transferor who is not the adoptive parent,<br>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; orPage No. 3c.The adoptive parent functioned as a parent of the adoptee before the adoptee<br>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<br>lives one hundred twenty hours after birth.b.If a child of assisted reproduction or a gestational child is conceived<br>posthumously and the distribution date is the deceased parent's death, the child<br>is treated as living on the distribution date if the child lives one hundred twenty<br>hours after birth and was in utero not later than thirty-six months after the<br>deceased parent's death or born not later than forty-five months after the<br>deceased parent's death.c.An individual who is in the process of being adopted when the class closes is<br>treated as adopted when the class closes if the adoption is subsequently<br>granted.30.1-09.1-06. (2-706) Life insurance - Retirement plan - Account with payable ondeath designation - Transfer-on-death registration - Deceased beneficiary.1.In this section:a."Alternative beneficiary designation" means a beneficiary designation that is<br>expressly created by the governing instrument and, under the terms of the<br>governing instrument, can take effect instead of another beneficiary designation<br>on the happening of one or more events, including survival of the decedent or<br>failuretosurvivethedecedent, whether an event is expressed incondition-precedent, condition-subsequent, or any other form.b."Beneficiary" means the beneficiary of a beneficiary designation under which<br>the beneficiary must survive the decedent and includes a class member if the<br>beneficiary designation is in the form of a class gift and includes an individual or<br>class member who was deceased at the time the beneficiary designation was<br>executed as well as an individual or class member who was then living but who<br>failed to survive the decedent, but excludes a joint tenant of a joint tenancy with<br>the right of survivorship and a party to a joint and survivorship account.c."Beneficiary designation" includes an alternative beneficiary designation and a<br>beneficiary designation in the form of a class gift.d."Class member" includes an individual who fails to survive the decedent but<br>who would have taken under a beneficiary designation in the form of a class gift<br>had the individual survived the decedent.e."Descendant of a grandparent", as used in subsection 2, means an individual<br>who qualifies as a descendant of a grandparent of the decedent under the rules<br>of construction applicable to a class gift created in the decedent's beneficiary<br>designation if the beneficiary designation is in the form of a class gift or rules for<br>intestate succession if the beneficiary designation is not in the form of a class<br>gift.f."Descendants", as used in the phrase "surviving descendants" of a deceased<br>beneficiary or class member in subdivisions a and b of subsection 2, mean the<br>descendants of a deceased beneficiary or class member who would take under<br>a class gift created in the beneficiary designation.Page No. 4g."Stepchild" means a child of the decedent's surviving, deceased, or former<br>spouse, and not of the decedent.h."Surviving" in the phrase "surviving beneficiary" or "surviving descendant"<br>means a beneficiary or a descendant who neither predeceased the decedent<br>nor is deemed to have predeceased the decedent under section 30.1-09.1-02.2.If a beneficiary fails to survive the decedent and is a grandparent, a descendant of a<br>grandparent, or a stepchild of the decedent, the following apply:a.Except as provided in subdivision d, if the beneficiary designation is not in the<br>form of a class gift and the deceased beneficiary leaves surviving descendants,<br>a substitute gift is created in the beneficiary's surviving descendants. They take<br>by representation the property to which the beneficiary would have been<br>entitled had the beneficiary survived the decedent.b.Except as provided in subdivision d, if the beneficiary designation is in the form<br>of a class gift, other than a beneficiary designation to "issue", "descendants",<br>"heirs of the body", "heirs", "next of kin", "relatives", "family", or a class<br>described by language of similar import, a substitute gift is created in the<br>surviving descendants of any deceased beneficiary. The property to which the<br>beneficiaries would have been entitled had all of them survived the decedent<br>passes to the surviving beneficiaries and the surviving descendants of the<br>deceased beneficiaries. Each surviving beneficiary takes the share to which<br>the surviving beneficiary would have been entitled had the deceased<br>beneficiaries survived the decedent.Each deceased beneficiary's survivingdescendants who are substituted for the deceased beneficiary take by<br>representation the share to which the deceased beneficiary would have been<br>entitled had the deceased beneficiary survived the decedent. For the purposes<br>of this subdivision, "deceased beneficiary" means a class member who failed to<br>survive the decedent and left one or more surviving descendants.c.For purposes of section 30.1-09.1-01, words of survivorship, such as in a<br>beneficiary designation to an individual "if the individual survives me", or in a<br>beneficiary designation to "my surviving children", are not, in the absence of<br>additional evidence, a sufficient indication of an intent contrary to the<br>application of this section.d.If a governing instrument creates an alternative beneficiary designation with<br>respect to a beneficiary designation for which a substitute gift is created by<br>subdivision a or b, the substitute gift is superseded by the alternative<br>beneficiary designation if:(1)The alternative beneficiary designation is in the form of a class gift and<br>one or more members of the class is entitled to take; or(2)The alternative beneficiary designation is not in the form of a class gift<br>and the expressly designated beneficiary of the alternative beneficiary<br>designation is entitled to take.3.If, under subsection 2, substitute gifts are created and not superseded with respect<br>to more than one beneficiary designation, and the beneficiary designations are<br>alternative beneficiary designations, one to the other, the determination of which of<br>the substitute gifts takes effect is resolved as follows:a.Except as provided in subdivision b, the property passes under the primary<br>substitute gift.Page No. 5b.If there is a younger-generation beneficiary designation, the property passes<br>under the younger-generation substitute gift and not under the primary<br>substitute gift.c.In this subsection:(1)"Primary beneficiary designation" means the beneficiary designation that<br>would have taken effect had all the deceased beneficiaries of the<br>alternative beneficiary designations who left surviving descendants<br>survived the decedent.(2)"Primary substitute gift" means the substitute gift created with respect to<br>the primary beneficiary designation.(3)"Younger-generation beneficiary designation" means a beneficiary<br>designation that is to a descendant of a beneficiary of the primary<br>beneficiary designation, is an alternative beneficiary designation with<br>respect to the primary beneficiary designation, is a beneficiary<br>designation for which a substitute gift is created, and would have taken<br>effect had all the deceased beneficiaries who left surviving descendants<br>survived the decedent except the deceased beneficiary or beneficiaries<br>of the primary beneficiary designation.(4)"Younger-generation substitute gift" means the substitute gift created<br>with respect to the younger-generation beneficiary designation.4.a.A payer is protected from liability in making payments under the terms of the<br>beneficiary designation until the payer has received written notice of a claim to<br>a substitute gift under this section. Payment made before the receipt of written<br>notice of a claim to a substitute gift under this section discharges the payer, but<br>not the recipient, from all claims for the amounts paid. A payer is liable for a<br>payment made after the payer has received written notice of the claim.Arecipient is liable for a payment received, whether or not written notice of the<br>claim is given.b.The written notice of the claim must be mailed to the payer's main office or<br>home by registered mail, return receipt requested, or served upon the payer in<br>the same manner as a summons in a civil action. Upon receipt of written notice<br>of the claim, a payer may pay any amount owed by it to the court having<br>jurisdiction of the probate proceedings relating to the decedent's estate or, if no<br>proceedings have been commenced, to the court having jurisdiction of probate<br>proceedings relating to decedents' estates located in the county of the<br>decedent's residence.The court shall hold the funds and, upon itsdetermination under this section, shall order disbursement in accordance with<br>the determination. Payment made to the court discharges the payer from all<br>claims for the amounts paid.5.a.A person who purchases property for value and without notice, or who receives<br>a payment or other item of property in partial or full satisfaction of a legally<br>enforceable obligation, is neither obligated under this section to return the<br>payment, item of property, or benefit nor is liable under this section for the<br>amount of the payment or the value of the item of property or benefit. But a<br>person who, not for value, receives a payment, item of property, or any other<br>benefit to which the person is not entitled under this section is obligated to<br>return the payment, item of property, or benefit, or is personally liable for the<br>amount of the payment or the value of the item or property or benefit, to the<br>person who is entitled to it under this section.Page No. 6b.If this section or any part of this section is preempted by federal law with<br>respect to a payment, an item of property, or any other benefit covered by this<br>section, a person who, not for value, receives the payment, item of property, or<br>any other benefit to which the person is not entitled under this section is<br>obligated to return the payment, item of property, or benefit, or is personally<br>liable for the amount of the payment or the value of the item of property or<br>benefit, to the person who would have been entitled to it were this section or<br>part of this section not preempted.30.1-09.1-07. (2-707) Survivorship with respect to future interests under the termsof a trust - Substitute takers.1.In this section:a."Alternative future interest" means to an expressly created future interest that<br>can take effect in possession or enjoyment instead of another future interest on<br>the happening of one or more events, including survival of an event or failure to<br>survive an event, whether an event is expressed in condition-precedent,<br>condition-subsequent, or any other form. A residuary clause in a will does not<br>create an alternative future interest with respect to a future interest created in a<br>nonresiduary devise in the will, whether or not the will specifically provides that<br>lapsed or failed devises are to pass under the residuary clause.b."Beneficiary" means the beneficiary of a future interest and includes a class<br>member if the future interest is in the form of a class gift.c."Class member" includes an individual who fails to survive the distribution date<br>but who would have taken under a future interest in the form of a class gift had<br>the individual survived the distribution date.d."Descendants", in the phrase "surviving descendants" of a deceased<br>beneficiary or class member in subdivisions a and b of subsection 2, mean the<br>descendants of a deceased beneficiary or class member who would take under<br>a class gift created in the trust.e."Distribution date", with respect to a future interest, means the time when the<br>future interest is to take effect in possession or enjoyment. The distribution<br>date need not occur at the beginning or end of a calendar day, but can occur at<br>a time during the course of a day.f."Future interest" includes an alternative future interest and a future interest in<br>the form of a class gift.g."Future interest under the terms of a trust" means a future interest that was<br>created by a transfer creating a trust or to an existing trust or by an exercise of<br>a power of appointment to an existing trust, directing the continuance of an<br>existing trust, designating a beneficiary of an existing trust, or creating a trust.h."Surviving" in the phrase "surviving beneficiary" or "surviving descendant"<br>means a beneficiary or a descendant who neither predeceased the distribution<br>date nor is deemed to have predeceased the distribution date under section<br>30.1-09.1-02.2.A future interest under the terms of a trust is contingent on the beneficiary's surviving<br>the distribution date. If a beneficiary of a future interest under the terms of a trust<br>fails to survive the distribution date, the following apply:a.Except as provided in subdivision d, if the future interest is not in the form of a<br>class gift and the deceased beneficiary leaves surviving descendants, aPage No. 7substitute gift is created in the beneficiary's surviving descendants. They take<br>by representation the property to which the beneficiary would have been<br>entitled had the beneficiary survived the distribution date.b.Except as provided in subdivision d, if the future interest is in the form of a class<br>gift, other than a future interest to "issue", "descendants", "heirs of the body",<br>"heirs", "next of kin", "relatives", or "family", or a class described by language of<br>similar import, a substitute gift is created in the surviving descendants of any<br>deceased beneficiary. The property to which the beneficiaries would have been<br>entitled had all of them survived the distribution date passes to the surviving<br>beneficiaries and the surviving descendants of the deceased beneficiaries.<br>Each surviving beneficiary takes the share to which the surviving beneficiary<br>would have been entitled had the deceased beneficiaries survived the<br>distribution date. Each deceased beneficiary's surviving descendants who are<br>substituted for the deceased beneficiary take by representation the share to<br>which the deceased beneficiary would have been entitled had the deceased<br>beneficiary survived the distribution date. For the purposes of this subdivision,<br>"deceased beneficiary" means a class member who failed to survive the<br>distribution date and left one or more surviving descendants.c.For purposes of section 30.1-09.1-01, words of survivorship attached to a future<br>interest are not, in the absence of additional evidence, a sufficient indication of<br>an intent contrary to the application of this section.Words of survivorshipinclude words of survivorship that relate to the distribution date or to an earlier<br>or an unspecified time, whether those words of survivorship are expressed in<br>condition-precedent, condition-subsequent, or any other form.d.If a governing instrument creates an alternative future interest with respect to a<br>future interest for which a substitute gift is created by subdivision a or b, the<br>substitute gift is superseded by the alternative future interest if:(1)The alternative future interest is in the form of a class gift and one or<br>more members of the class is entitled to take in possession or<br>enjoyment; or(2)The alternative future interest is not in the form of a class gift and the<br>expressly designated beneficiary of the alternative future interest is<br>entitled to take in possession or enjoyment.3.If, under subsection 2, substitute gifts are created and not superseded with respect<br>to more than one future interest and the future interests are alternative future<br>interests, one to the other, the determination of which of the substitute gifts takes<br>effect is resolved as follows:a.Except as provided in subdivision b, the property passes under the primary<br>substitute gift.b.If there is a younger-generation future interest, the property passes under the<br>younger-generation substitute gift and not under the primary substitute gift.c.In this subsection:(1)"Primary future interest" means the future interest that would have taken<br>effect had all the deceased beneficiaries of the alternative future interest<br>who left surviving descendants survived the distribution date.(2)"Primary substitute gift" means the substitute gift created with respect to<br>the primary future interest.Page No. 8(3)"Younger-generation future interest" means a future interest that is to a<br>descendant of a beneficiary of the primary future interest, is an<br>alternative future interest with respect to the primary future interest, is a<br>future interest for which a substitute gift is created, and would have taken<br>effect had all the deceased beneficiaries who left surviving descendants<br>survived the distribution date except the deceased beneficiary of<br>beneficiaries of the primary future interest.(4)"Younger-generation substitute gift" means the substitute gift created<br>with respect to the younger-generation future interest.4.Except as provided in subsection 5, if, after the application of subsections 2 and 3,<br>there is no surviving taker, the property passes in the following order:a.If the trust was created in a nonresiduary devise in the transferor's will or in a<br>codicil to the transferor's will, the property passes under the residuary clause in<br>the transferor's will.For purposes of this section, the residuary clause istreated as creating a future interest under the terms of a trust.b.If no taker is produced by the application of subdivision a, the property passes<br>to the transferor's heirs under section 30.1-09.1-11.5.If, after the application of subsections 2 and 3, there is no surviving taker and if the<br>future interest was created by the exercise of a power of appointment:a.The property passes under the donor's gift-in-default clause, if any, which<br>clause is treated as creating a future interest under the terms of a trust; andb.If no taker is produced by the application of subdivision a, the property passes<br>as provided in subsection 4. For purposes of subsection 4, "transferor" means<br>the donor if the power was a nongeneral power and means the donee if the<br>power was a general power.30.1-09.1-08. (2-708) Class gifts to descendants, issue, or heirs of the body - Formof distribution if none specified. If a class gift in favor of "descendants", "issue", or "heirs of the<br>body" does not specify the manner in which the property is to be distributed among the class<br>members, the property is distributed among the class members who are living when the interest<br>is to take effect in possession or enjoyment, in such shares as they would receive, under the<br>applicable law of intestate succession, if the designated ancestor had then died intestate owning<br>the subject matter of the class gift.30.1-09.1-09. (2-709) Per capita at each generation - Representation - Per stirpes.1.In this section:a."Deceased child" or "deceased descendant" means a child or a descendant<br>who either predeceased the distribution date or is deemed to have<br>predeceased the distribution date under section 30.1-09.1-02.b."Distribution date", with respect to an interest, means the time when the interest<br>is to take effect in possession or enjoyment. The distribution date need not<br>occur at the beginning or end of a calendar day, but can occur at a time during<br>the course of a day.c."Surviving ancestor", "surviving child", or "surviving descendant" means an<br>ancestor, a child, or a descendant who neither predeceased the distribution<br>date nor is deemed to have predeceased the distribution date under section<br>30.1-09.1-02.Page No. 92.If a governing instrument calls for property to be distributed "per capita at each<br>generation", the property is divided into as many equal shares as there are surviving<br>descendants in the generation nearest to the designated ancestor which contains<br>one or more surviving descendants and deceased descendants in the same<br>generation who left surviving descendants, if any. Each surviving descendant in the<br>nearest generation is allocated one share.The remaining shares, if any, arecombined and then divided in the same manner among the surviving descendants of<br>the deceased descendants as if the surviving descendants who were allocated a<br>share and their surviving descendants had predeceased the distribution date.3.If an applicable statute or a governing instrument calls for property to be distributed<br>"by representation" or "per stirpes", the property is divided into as many equal<br>shares as there are surviving children of the designated ancestor and deceased<br>children who left surviving descendants. Each surviving child is allocated one share.<br>The share of each deceased child with surviving descendants is divided in the same<br>manner, with subdivision repeating at each succeeding generation until the property<br>is fully allocated among surviving descendants.4.For the purposes of subsections 2 and 3, an individual who is deceased and left no<br>surviving descendant is disregarded, and an individual who leaves a surviving<br>ancestor who is a descendant of the designated ancestor is not entitled to a share.30.1-09.1-10. (2-710) Worthier-title doctrine abolished. The doctrine of worthier title isabolished as a rule of law and as a rule of construction. Language in a governing instrument<br>describing the beneficiaries of a disposition as the transferor's "heirs", "heirs at law", "next of kin",<br>"distributees", "relatives", "family", or language of similar import does not create or presumptively<br>create a reversionary interest in the transferor.30.1-09.1-11. (2-711) Future interests in heirs and like. If an applicable statute or agoverning instrument calls for a present or future distribution to or creates a present or future<br>interest in a designated individual's "heirs", "heirs at law", "next of kin", "relatives", or "family", or<br>language of similar import, the property passes to those persons, including the state, and in such<br>shares as would succeed to the designated individual's intestate estate under the intestate<br>succession law of the designated individual's domicile if the designated individual died when the<br>disposition is to take effect in possession or enjoyment. If the designated individual's surviving<br>spouse is living but is remarried at the time the disposition is to take effect in possession or<br>enjoyment, the surviving spouse is not an heir of the designated individual.Page No. 10Document Outlinechapter 30.1-09.1 rules of construction of governing instrument
