(2-707) Survivorship with respect to future interests under the terms of a trust - Substitute takers
N.D. Cent. Code § 30.1-09.1-07
in effect30.1-09.1-07. (2-707) Survivorship with respect to future interests under the terms of a
trust - Substitute takers.
1. In this section:
a. "Alternative future interest" means to an expressly created future interest that can
take effect in possession or enjoyment instead of another future interest on the
happening of one or more events, including survival of an event or failure to
survive an event, whether an event is expressed in condition-precedent,
condition-subsequent, or any other form. A residuary clause in a will does not
create an alternative future interest with respect to a future interest created in a
nonresiduary devise in the will, whether or not the will specifically provides that
lapsed or failed devises are to pass under the residuary clause.
b. "Beneficiary" means the beneficiary of a future interest and includes a class
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
but who would have taken under a future interest in the form of a class gift had
the individual survived the distribution date.
d. "Descendants", in the phrase "surviving descendants" of a deceased beneficiary
or class member in subdivisions a and b of subsection 2, mean the descendants
of a deceased beneficiary or class member who would take under a class gift
created in the trust.
e. "Distribution date", with respect to a future interest, means the time when the
future interest is to take effect in possession or enjoyment. The distribution date
need not occur at the beginning or end of a calendar day, but can occur at a time
during the course of a day.
f. "Future interest" includes an alternative future interest and a future interest in the
form of a class gift.
g. "Future interest under the terms of a trust" means a future interest that was
created by a transfer creating a trust or to an existing trust or by an exercise of a
power of appointment to an existing trust, directing the continuance of an existing
trust, designating a beneficiary of an existing trust, or creating a trust.
h. "Surviving" in the phrase "surviving beneficiary" or "surviving descendant" means
a beneficiary or a descendant who neither predeceased the distribution date nor
is deemed to have predeceased the distribution date under section 30.1-09.1-02.
2. A future interest under the terms of a trust is contingent on the beneficiary's surviving
the distribution date. If a beneficiary of a future interest under the terms of a trust 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
class gift and the deceased beneficiary leaves surviving descendants, a
substitute gift is created in the beneficiary's surviving descendants. They take by
representation the property to which the beneficiary would have been 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
gift, other than a future interest to "issue", "descendants", "heirs of the body",
"heirs", "next of kin", "relatives", or "family", or a class described by language of
similar import, a substitute gift is created in the surviving descendants of any
deceased beneficiary. The property to which the beneficiaries would have been
entitled had all of them survived the distribution date passes to the surviving
beneficiaries and the surviving descendants of the deceased beneficiaries. Each
surviving beneficiary takes the share to which the surviving beneficiary would
have been entitled had the deceased beneficiaries survived the distribution date.
Each deceased beneficiary's surviving descendants who are substituted for the
deceased beneficiary take by representation the share to which the deceased
beneficiary would have been entitled had the deceased beneficiary survived the
distribution date. For the purposes of this subdivision, "deceased beneficiary"
means a class member who failed to survive the 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
interest are not, in the absence of additional evidence, a sufficient indication of an
intent contrary to the application of this section. Words of survivorship include
words of survivorship that relate to the distribution date or to an earlier or an
unspecified time, whether those words of survivorship are expressed in
condition-precedent, condition-subsequent, or any other form.
d. If a governing instrument creates an alternative future interest with respect to a
future interest for which a substitute gift is created by subdivision a or b, the
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 more
members of the class is entitled to take in possession or enjoyment; or
(2) The alternative future interest is not in the form of a class gift and the
expressly designated beneficiary of the alternative future interest is entitled
to take in possession or enjoyment.
3. If, under subsection 2, substitute gifts are created and not superseded with respect to
more than one future interest and the future interests are alternative future interests,
one to the other, the determination of which of the substitute gifts takes effect is
resolved as follows:
a. Except as provided in subdivision b, the property passes under the primary
substitute gift.
b. If there is a younger-generation future interest, the property passes under the
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
effect had all the deceased beneficiaries of the alternative future interest
who left surviving descendants survived the distribution date.
(2) "Primary substitute gift" means the substitute gift created with respect to the
primary future interest.
(3) "Younger-generation future interest" means a future interest that is to a
descendant of a beneficiary of the primary future interest, is an alternative
future interest with respect to the primary future interest, is a future interest
for which a substitute gift is created, and would have taken effect had all the
deceased beneficiaries who left surviving descendants survived the
distribution date except the deceased beneficiary of beneficiaries of the
primary future interest.
(4) "Younger-generation substitute gift" means the substitute gift created with
respect to the younger-generation future interest.
4. Except as provided in subsection 5, if, after the application of subsections 2 and 3,
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
codicil to the transferor's will, the property passes under the residuary clause in
the transferor's will. For purposes of this section, the residuary clause is treated
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 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
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 clause
is treated as creating a future interest under the terms of a trust; and
b. If no taker is produced by the application of subdivision a, the property passes as
provided in subsection 4. For purposes of subsection 4, "transferor" means the
donor if the power was a nongeneral power and means the donee if the power
was a general power.
Source: Open US Law by Vaquill AI (CC BY 4.0)URL: https://ndlegis.gov/cencode/t30-1c09-1.pdf#nameddest=30p1-09p1-07Fetched: 10/16/2026