(a) Except as provided in subsection (c) of this section, if a married person domiciled in this state dies, the surviving spouse has a right of election to take an elective share in any fraction not in excess of one-half of the augmented estate under the limitations and conditions hereinafter stated.

(b) Except as provided in subsection (c) of this section, if a married person not domiciled in this state dies, the right, if any, of the surviving spouse to take an elective share in property in this state and the amount or extent of such share are governed by the law of the decedent's domicile at death.

(c) If a married person dies and such person (1) had been an owner of real estate in this state and (2) had conveyed the real estate during his or her lifetime without joinder of his or her spouse in the conveyance, while domiciled outside of the state, such conveyance shall be valid regardless of the law of the decedent's domicile at death. The real estate shall not be subject to any claims or interests derived from the grantor or the grantor's estate because the spouse did not join in the conveyance.

Annotations

This section provides the right of a surviving spouse to elect to take an elective share of a deceased spouse's estate. In re Estate of Peterson, 221 Neb. 792, 381 N.W.2d 109 (1986).

(a) The augmented estate is the estate, first, reduced by the aggregate amount of funeral and administration expenses, homestead allowance, family allowances and exemptions, and enforceable claims and, second, increased by the aggregate amount of the following items:

(1) The value of property transferred by the decedent at any time during marriage to the surviving spouse to or for the benefit of any person other than a bona fide purchaser or the surviving spouse, but only to the extent to which the decedent did not receive adequate and full consideration in money or money's worth for such transfer, if such transfer is a transfer of any of the following types:

(i) Any transfer under which the decedent retained at death the possession or enjoyment of, or right to income from, the property;

(ii) Any transfer to the extent to which the decedent retained at death a power alone or with any other person to revoke such transfer or to consume, invade, or dispose of the principal of the property for his or her own benefit;

(iii) Any transfer whereby the property is held at death by the decedent and any other person or persons with right of survivorship; or

(iv) Any transfer to a donee or donees made by the decedent within three years of death to the extent to which the aggregate amount of such transfers to any one donee in any of such years exceeded three thousand dollars; and

(2) The value of property owned by the surviving spouse at death of the decedent and the value of property transferred by the surviving spouse at any time during marriage to the decedent to or for the benefit of any person other than the decedent, but exclusive of all income earned thereby before death of the decedent and only to the extent both to which such property would have been included in the augmented estate of the surviving spouse if the surviving spouse had predeceased the decedent and to which such property is derived from the decedent by any means other than testate or intestate succession without adequate and full consideration in money or money's worth, if such property is property of any of the following types:

(i) Any property derived from the decedent including, without limitation to, any beneficial interest of the surviving spouse in a trust created by the decedent during his or her lifetime, any property appointed to the surviving spouse by the exercise by the decedent of a general or a special power of appointment also exercisable in favor of any person other than the surviving spouse, any proceeds, including accidental death benefits, of insurance upon the life of the decedent together with any lump sum immediately payable and the commuted value of any proceeds of annuity contracts under which the decedent was the primary annuitant attributable to the premiums for such insurance paid by the decedent or by his or her employer, his or her partner, a partnership of which he or she was a member, or any of his or her creditors, the commuted value of any amounts or proceeds payable after death of the decedent under public or private pension, disability, compensation, death benefit, or retirement plan, exclusive of the federal social security, railroad retirement, or like system, by reason of service performed or disability incurred by the decedent, and the value of any share of the surviving spouse resulting from rights in community property in Nebraska or elsewhere formerly owned with the decedent; or

(ii) Any property owned by the surviving spouse at death of the decedent or previously transferred by the surviving spouse, except to the extent to which the surviving spouse establishes that such property was derived from any source other than the decedent.

A bona fide purchaser under (1) above is a purchaser for value in good faith and without notice of any adverse claim; and the attachment of stamps to an instrument and their cancellation under sections 76-901 to 76-908 are prima facie evidence that the transferee of the transfer thereby effected is a bona fide purchaser.

(b) Property included in the augmented estate under subsection (a) of this section is valued at the following dates:

(1) For property transferred by the decedent by irrevocable gift during lifetime, at the date, if before death of the decedent, the donee first came into possession or enjoyment of such property;

(2) For property transferred by the surviving spouse of the decedent, at the date, if before death of the decedent, such transfer became irrevocable; and

(3) For all property not valued at any other date, at the date of death of the decedent.

(1) Accident or life insurance proceeds, joint annuity, or pension payable to any person other than the surviving spouse of the decedent;

(2) Property transferred by the decedent to any person other than the surviving spouse by any bill of sale, conveyance, deed, or gift or by any other means of transfer either by an instrument of transfer joined in by the surviving spouse of the decedent or with the consent to transfer manifested before or after death of the decedent by a writing signed by the surviving spouse of the decedent before, contemporaneously with, or after the transfer; and

(3) Property transferred by or from the decedent to any person by any means other than intestate succession or testamentary disposition if a petition is not filed or delivered under section 30-2317 within nine months of the death of the decedent.

Annotations

1. Calculating augmented estate

2. Purpose

3. Miscellaneous

1. Calculating augmented estate

Under subdivision (a)(1)(i) of this section, a transfer "under which the decedent retained at death the possession or enjoyment of, or right to income from, the property" does not require that the decedent's right to possession of, enjoyment of, or income from the property be recorded in the instrument of transfer. A decedent retains possession or enjoyment of, or the right to income from, property when it is understood that the decedent will retain such an interest despite the transfer. And such an understanding need not be express; it can be implied from the circumstances surrounding the transfer. In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).
Under subdivision (c)(2) of this section, if a spouse had agreed to a transfer, the value of the transferred property is not included in the transferring spouse's augmented estate. In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).
What is significant for purposes of subdivision (a)(1)(i) of this section is whether the parties to a transfer intended the decedent to functionally retain possession or enjoyment of, or the right to income from, the property—not whether the written instrument of transfer reflects that intent. In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).
Under this section, only a decedent's transfers to others during his or her marriage to the surviving spouse are included in the augmented estate for calculating a surviving spouse's elective share. In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).
Under this section, the probate estate is augmented by first reducing the estate by specified obligations and liabilities and then increasing the estate by the value of specified properties and transfers. In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).
Whether premarital trust assets are part of the augmented estate for determining a surviving spouse's elective share is governed by this section, not section 30-3850 of the Nebraska Uniform Trust Code. In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).
A spouse's labor does not become a contribution "in money's worth" such as to take one-half the value of jointly produced and acquired assets out of the augmented estate computation provided for in this section. In re Estate of Carman, 213 Neb. 98, 327 N.W.2d 611 (1982).
An augmented estate formula includes property added that decedent gave to others during his lifetime and property held jointly by decedent and others. In re Estate of Florey, 212 Neb. 665, 325 N.W.2d 643 (1982).
Property owned in joint tenancy is not included in the estate of the deceased joint tenant except for inheritance tax purposes. In re Estate of Walters, 212 Neb. 645, 324 N.W.2d 889 (1982).

2. Purpose

The dual purpose of the elective share provisions is to prevent a spouse from being denied a fair share of the decedent's estate and also to prevent the surviving spouse from obtaining more than a fair share of the estate when he or she has already received a share of the estate through some other means. To achieve this purpose, the value of certain property transferred by the decedent during marriage is included in the decedent's augmented estate under subdivision (a)(1) of this section. In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).
The exclusion of premarital trusts from the augmented estate was intended to permit a person to provide for children by a prior marriage, as by a revocable living trust, without concern that such provisions will be upset by later marriage. In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).

3. Miscellaneous

The signature of a testator's surviving spouse on a deed was evidence of a consent to transfer within the meaning of this section. In re Estate of Alberts, 293 Neb. 1, 875 N.W.2d 427 (2016).
Subdivision (a)(1)(i) of this section does not include the word "document" or even require a writing evidencing a transfer. In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).
The concepts of section 30-2722 should inform the interpretation of this section regarding the evidence necessary to establish the source of property owned by the surviving spouse. In re Estate of Ross, 19 Neb. App. 355, 810 N.W.2d 435 (2011).
When there is reason to doubt the credibility of the surviving spouse's testimony, the court need not accept his or her testimony that the source of the accounts was other than the decedent. In re Estate of Ross, 19 Neb. App. 355, 810 N.W.2d 435 (2011).

The right of election of the surviving spouse may be exercised only during his or her lifetime by him or her. In the case of a protected person, the right of election may be exercised only by order of the court in which protective proceedings as to his or her property are pending, after finding that exercise thereof in the fraction designated or proposed is in the best interests of the protected person during his or her probable life expectancy and of the children, family members, or other successors to the decedent or to the protected person, due regard being given by the court to the other assets and resources of the protected person, the extent and nature of any dependent, mutual, or otherwise related estate planning of the decedent and the protected person, the present and likely future financial impact upon the estate of the decedent, the protected person or the estate of the protected person, or such successors of any federal or state estate, excise, gift, income, inheritance, succession, or other tax consequent upon such exercise, and the existence or nonexistence of any other factors deemed by the court to be relevant to the exercise or nonexercise of the right of election.

Annotations

Under the plain language of this section, the surrounding facts and circumstances should be taken in consideration by the court in order to determine whether to authorize the filing for the elective share in the case of a protected person. In re Guardianship & Conservatorship of Kaiser, 295 Neb. 532, 891 N.W.2d 84 (2017).
If a surviving spouse dies after filing a petition for an elective share pursuant to section 30-2315 and this section, the proceeding to enforce the spouse's election as a vested right may be revived by the personal representative of the estate of the spouse who has made the election but who has died before distribution of property pursuant to the elective share. A surviving spouse elects to take a share in the augmented estate when a petition for the elective share is filed in the county court that has probate jurisdiction and is served on the estate's personal representative, if any. In re Estate of Stephenson, 243 Neb. 890, 503 N.W.2d 540 (1993).

(a) The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse.

(b) A surviving spouse's waiver is not enforceable if the surviving spouse proves that:

(2) the waiver was unconscionable when it was executed and, before execution of the waiver, he or she:

(i) was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent;

(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided; and

(iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.

(d) Unless it provides to the contrary, a waiver of "all rights", or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation, divorce, or annulment is a waiver of all rights to elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to him or her from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.

Annotations

A surviving spouse must prove both that the execution of the waiver was not voluntary and that the waiver was unconscionable when executed to prove a waiver he or she signed is unenforceable. In re Estate of Psota, 297 Neb. 570, 900 N.W.2d 790 (2017).
Subsection (d) of this section contemplates the waiving of the spouse's rights of inheritance only. Devney v. Devney, 295 Neb. 15, 886 N.W.2d 61 (2016).
This section's authorization of postnuptial estate agreements should be strictly construed, because all postnuptial agreements were void at common law. Devney v. Devney, 295 Neb. 15, 886 N.W.2d 61 (2016).
Subsection (d) of this section is applicable only if the parties enter into a property settlement. The term "settlement" implies a meeting of the minds of the parties to a transaction or controversy, an adjustment of differences or accounts, or a coming to an agreement. In re Estate of Pfeiffer, 265 Neb. 498, 658 N.W.2d 14 (2003).
Antenuptial agreements that waive the right of election are statutorily authorized by this section. In re Estate of Jakopovic, 261 Neb. 248, 622 N.W.2d 651 (2001).
This section imposes a statutory duty that the parties to an antenuptial agreement make fair disclosure before signing the antenuptial agreement. In re Estate of Stephenson, 243 Neb. 890, 503 N.W.2d 540 (1993).
This section provides that the parties to a valid antenuptial agreement may waive the right to elect a share of both real and personal property of a deceased spouse. In re Estate of Peterson, 221 Neb. 792, 381 N.W.2d 109 (1986).
Fair disclosure was given to the parties. In re Estate of Hill, 214 Neb. 702, 335 N.W.2d 750 (1983).
This section was the law in effect at the time of death, and thus controlled the question of whether a postnuptial agreement precluded the spouse from electing against the will. A postnuptial agreement not to elect against the will was valid and enforceable under this section. In re Estate of Kopecky, 6 Neb. App. 500, 574 N.W.2d 549 (1998).

(a) The surviving spouse may elect to take his or her elective share in the augmented estate by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share in any designated fraction not in excess of one-half or, in the absence of any such designation, of one-half of the augmented estate within nine months after the date of death or within six months after the probate of the decedent's will, whichever time limitation last expires. Nonprobate transfers described in section 30-2314(a)(1) shall not be included within the augmented estate for the purpose of computing the elective share if the petition is filed later than one year after death. The court may extend the time for election as it sees fit for cause shown by the surviving spouse before the time for election has expired.

(b) The surviving spouse shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share.

(c) The surviving spouse may withdraw his or her demand for an elective share at any time before entry of a final determination by the court.

(d) After notice and hearing, the court shall determine the amount of the elective share and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under section 30-2319. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than he or she would have been if relief had been secured against all persons subject to contribution.

(e) The order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.

Annotations

A surviving spouse elects to take a share in the augmented estate when a petition for the elective share is filed in the county court that has probate jurisdiction and is served on the estate's personal representative, if any. In re Estate of Stephenson, 243 Neb. 890, 503 N.W.2d 540 (1993).
If a surviving spouse dies after filing a petition for an elective share pursuant to section 30-2315 and this section, the proceeding to enforce the spouse's election as a vested right may be revived by the personal representative of the estate of the spouse who has made the election but who has died before distribution of property pursuant to the elective share. In re Estate of Stephenson, 243 Neb. 890, 503 N.W.2d 540 (1993).

(a) The surviving spouse's election of his elective share does not affect the share of the surviving spouse under the provisions of the decedent's will or intestate succession unless the surviving spouse also expressly renounces in the petition for an elective share the benefit of all or any of the provisions. If any provision is so renounced, the property or other benefit which would otherwise have passed to the surviving spouse thereunder is treated, subject to contribution under subsection 30-2319(b), as if the surviving spouse had predeceased the testator.

(b) A surviving spouse is entitled to homestead allowance, exempt property and family allowance whether or not he elects to take an elective share.

(a) In the proceeding for an elective share, property which is part of the augmented estate which passes or has passed to the surviving spouse by testate or intestate succession or other means and which has not been renounced, including that described in section 30-2314, is applied first to satisfy the elective share and to reduce the amount due from other recipients of portions of the augmented estate.

(b) Remaining property of the augmented estate is so applied that liability for the balance of the elective share of the surviving spouse is equitably apportioned among the recipients of the augmented estate in proportion to the value of their interests therein.

(c) Only original transferees from, or appointees of, the decedent and their donees, to the extent the donees have the property or its proceeds, are subject to the contribution to make up the elective share of the surviving spouse. A person liable to contribution may choose to give up the property transferred to him or to pay its value as of the time it is considered in computing the augmented estate.

Annotations

A surviving spouse's beneficial interest in an inter vivos trust created by the decedent is property which passes or has passed to the surviving spouse within the meaning of this section such that it should be charged against the amount of the surviving spouse's elective share of the augmented estate. In re Estate of Myers, 256 Neb. 817, 594 N.W.2d 563 (1999).
This section does not make a distinction between specific and residuary beneficiaries; each beneficiary, regardless of whether it is a specific or residual beneficiary, must contribute proportionately, according to its interests, to the elective share. In re Estate of Ziegenbein, 2 Neb. App. 923, 519 N.W.2d 5 (1994).

(a) If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will unless waived pursuant to section 30-2316.

(b) In satisfying a share provided by this section, the devises made by the will abate as provided in section 30-24,100.

(a) If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate unless:

(2) when the will was executed the testator had one or more children and devised substantially all his estate to the other parent of the omitted child; or

(3) the testator provided for the child by transfer outside the will in an amount equal to or greater than such child's share had the testator died intestate.

(b) If at the time of execution of the will the testator fails to provide in his will for a living child solely because he believes the child to be dead, the child receives a share in the estate equal in value to that which he would have received if the testator had died intestate.

A surviving spouse of a decedent who was domiciled in this state is entitled to a homestead allowance of seven thousand five hundred dollars for a decedent who dies before January 1, 2011, twenty thousand dollars for a decedent who dies on or after January 1, 2011, and before January 1, 2027, and twenty-five thousand dollars for a decedent who dies on or after January 1, 2027. If there is no surviving spouse, each minor child and each dependent child of the decedent is entitled to a homestead allowance amounting to the amount allowed for a surviving spouse divided by the number of minor and dependent children of the decedent. The homestead allowance is exempt from and has priority over all claims against the estate except for costs and expenses of administration. Homestead allowance is in addition to any share passing to the surviving spouse or minor or dependent child by the will of the decedent unless otherwise provided therein, by intestate succession or by way of elective share.

(1) In addition to the homestead allowance, the surviving spouse of a decedent who was domiciled in this state is entitled from the estate to value not exceeding five thousand dollars for a decedent who dies before January 1, 2011, twelve thousand five hundred dollars for a decedent who dies on or after January 1, 2011, and before January 1, 2027, and seventeen thousand five hundred dollars for a decedent who dies on or after January 1, 2027, in excess of any security interests therein in household furniture, automobiles, furnishings, appliances, and personal effects. If there is no surviving spouse, children of the decedent are entitled jointly to the same value unless the decedent has provided in his or her will that one or more of such children shall be disinherited, in which case only those children not so disinherited shall be so entitled. For purposes of this section, disinherited means providing in one's will that a child shall take nothing or a nominal amount of ten dollars or less from the estate.

(2) If encumbered chattels are selected and if the value in excess of security interests, plus that of other exempt property, is less than the amount allowed under subsection (1) of this section, or if there is not that amount worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the amount allowed under subsection (1) of this section. Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate except for costs and expenses of administration, except for claims filed by the Department of Health and Human Services pursuant to section 68-919 notwithstanding the order of payment established in section 30-2487, and except that the right to any assets to make up a deficiency of exempt property shall abate as necessary to permit prior payment of homestead allowance and family allowance.

(3) These rights are in addition to any benefit or share passing to the surviving spouse by the will of the decedent unless otherwise provided therein, by intestate succession, or by way of elective share. These rights are in addition to any benefit or share passing to the surviving children by intestate succession and are in addition to any benefit or share passing by the will of the decedent to those surviving children not disinherited unless otherwise provided in the will.

Annotations

This section creates a vested and indefeasible statutory right which may not be abrogated by will that accrues to the surviving spouse or the surviving children jointly if there is no surviving spouse upon the death of the testator. In re Estate of Peterson, 254 Neb. 334, 576 N.W.2d 767 (1998).

In addition to the right to homestead allowance and exempt property, if the decedent was domiciled in this state, the surviving spouse and minor children whom the decedent was obligated to support and children who were in fact being supported by him are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than one year if the estate is inadequate to discharge allowed claims. The allowance may be paid as a lump sum or in periodic installments. It is payable to the surviving spouse, if living, for the use of the surviving spouse and minor and dependent children; otherwise to the children, or persons having their care and custody; but in case any minor child or dependent child is not living with the surviving spouse, the allowance may be made partially to the child or his guardian or other person having his care and custody, and partially to the spouse, as their needs may appear. The family allowance is exempt from and has priority over all claims except for costs and expenses of administration and the homestead allowance.

The family allowance is not chargeable against any benefit or share passing to the surviving spouse or children by the will of the decedent unless otherwise provided therein, by intestate succession, or by way of elective share. The death of any person entitled to family allowance, other than the surviving spouse, terminates his right to allowances not yet paid.

Annotations

Under this section and section 30-2325, a right to allowances for homestead, exempt property, and unpaid spousal support survives the claimant's death to the extent of unpaid support. In re Estate of Stephenson, 243 Neb. 890, 503 N.W.2d 540 (1993).
The rights granted herein are specific, vested, and indefeasible and accrue to the recipient statutorily upon the decedent's death. In re Estate of Carman, 213 Neb. 98, 327 N.W.2d 611 (1982).

If the estate is otherwise sufficient, property specifically devised is not used to satisfy rights to homestead and exempt property. Subject to this restriction, the surviving spouse, the guardians of the minor children, or children who are adults may select property of the estate as homestead allowance and exempt property. After giving such notice as the court may require in a proceeding initiated under the provisions of section 30-2405, the personal representative may make these selections if the surviving spouse, the children or the guardians of the minor children are unable or fail to do so within a reasonable time or if there are no guardians of the minor children. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as homestead allowance or exempt property. The personal representative may determine the family allowance in a lump sum not exceeding nine thousand dollars for a decedent who dies before January 1, 2011, twenty thousand dollars for a decedent who dies on or after January 1, 2011, and before January 1, 2027, and twenty-five thousand dollars for a decedent who dies on or after January 1, 2027, or periodic installments not exceeding seven hundred fifty dollars per month for one year for a decedent who dies before January 1, 2011, one thousand six hundred sixty-six dollars and sixty-seven cents per month for one year for a decedent who dies on or after January 1, 2011, and before January 1, 2027, and two thousand eighty-three dollars and thirty-three cents per month for one year for a decedent who dies on or after January 1, 2027. The personal representative may disburse funds of the estate in payment of the family allowance and any part of the homestead allowance payable in cash. The personal representative or any interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the court for appropriate relief, which relief may provide a family allowance larger or smaller than that which the personal representative determined or could have determined.

The homestead allowance, the exempt property, and the family allowance as finally determined by the personal representative or by the court, shall vest in the surviving spouse as of the date of decedent's death, as a vested indefeasible right of property, shall survive as an asset of the surviving spouse's estate if unpaid on the date of death of such surviving spouse, and shall not terminate upon the death or remarriage of the surviving spouse.