§ 30-2316 — Waiver of right to elect and of other rights; enforceability

Nebraska § 30-2316

• Jurisdiction: Nebraska
• Ch. 30: Decedents' Estates; Protection of Persons and Property

Text

(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:
(1) he or she did not execute the waiver voluntarily; or
(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.
(c) An issue of unconscionability of a waiver is for decision by the court as a matter of law.
(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.

Legislative History

Source: Laws 1974, LB 354, § 38, UPC § 2-204; Laws 1994, LB 202, § 12; Laws 2018, LB847, § 1. 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).