Nebraska Elective Share: Your Spouse's Right to Override the Will

A Nebraska will can leave a surviving spouse nothing. But that doesn't mean they get nothing. Under Neb. Rev. Stat. § 30-2313, a surviving spouse has the legal right to reject the will's terms and instead claim a percentage of the "augmented estate."

This is the elective share — and it exists because Nebraska is a common law state where assets belong to whoever holds the title. Without this protection, a spouse could be completely disinherited after decades of marriage.

How the Elective Share Percentage Works

The elective share isn't a flat 50%. It's a sliding scale based on the length of the marriage:

After 10 years of marriage, the surviving spouse can claim up to half of the augmented estate — regardless of what the will directs.

What Is the "Augmented Estate"?

The augmented estate is broader than the probate estate. It's designed to prevent a spouse from moving assets out of the will's reach before death. The calculation pools four categories:

1. The decedent's net probate estate. Everything that passes through the will, minus debts and administrative costs.

2. Non-probate transfers to others. Assets the deceased transferred to third parties without adequate consideration during the marriage — such as gifts into irrevocable trusts, joint accounts established with non-spouses, or property given away within two years of death. This prevents someone from emptying their estate to cut out their spouse.

3. Non-probate transfers to the surviving spouse. Assets the spouse receives outside the will — life insurance proceeds, retirement account beneficiary designations, joint tenancy property. These count toward satisfying the elective share. If the spouse already receives substantial non-probate transfers, their elective share claim may be partially or fully satisfied.

4. The surviving spouse's own property. The spouse's separate assets are included in the augmented estate calculation (though not taken from them). This prevents a wealthy surviving spouse from claiming the elective share to gain a disproportionate windfall.

How to File the Election

The surviving spouse must formally assert the elective share in the county court. The deadlines are strict:

• Nine months from the date of death, or
• Six months after the will is admitted to probate

Whichever deadline expires later controls. Missing both deadlines waives the right permanently.

The election is filed as a petition with the county court handling the probate. Once filed, the court calculates the augmented estate, determines the elective share amount, and orders the personal representative to satisfy it — if the spouse hasn't already received enough through non-probate transfers.

When the Elective Share Matters

Disinheritance attempts. A will that says "I leave nothing to my spouse" triggers the elective share. For a 15-year marriage, the spouse can claim 50% of the augmented estate — potentially more than they would have received under the will's original terms.

Blended families. A spouse who remarries may want to leave everything to children from a prior marriage. The new spouse can override that plan using the elective share. Estate planning for blended families must account for this right — typically through prenuptial agreements that waive the elective share, or through trust structures that provide for the spouse during their lifetime while preserving assets for the children.

Unequal asset distribution. When one spouse owns significantly more than the other, the elective share ensures the surviving spouse isn't left dependent on the goodwill of other beneficiaries.

Can the Elective Share Be Waived?

Yes — through a written agreement. Nebraska allows spouses to waive the elective share via a prenuptial or postnuptial agreement. The waiver must be:

• In writing and signed voluntarily
• Entered into after fair disclosure of the other spouse's finances (or a voluntary waiver of that disclosure)
• Not unconscionable at the time of enforcement

Courts will invalidate a waiver if there's evidence of fraud, duress, or if one party wasn't fully informed about the other's assets.

Planning Around the Elective Share

If your estate plan intentionally limits what your spouse receives, the elective share is a legal reality you must address — either by securing a written waiver or by structuring your plan so the spouse's non-probate transfers (life insurance, retirement accounts, joint property) already satisfy the elective share percentage.

The Nebraska Basic Estate Planning Kit includes a section on spousal protections, including the augmented estate calculation and strategies for coordinating the elective share with your overall distribution plan.

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