Disclaimer: This article provides general information and is not legal advice. Consult a qualified Nebraska probate attorney regarding your specific situation.
Detailed Answer
When a Nebraska resident dies without a will (intestate), their estate passes to heirs under Nebraska law. The intestate succession rules in Neb. Rev. Stat. §§30-2201 to 30-2223 govern how property is divided. A surviving spouse receives a fixed statutory share but cannot elect to take a life estate in the property in place of that share.
Spouse’s Intestate Share
The share of the estate a surviving spouse receives depends on the presence of lineal descendants or surviving parents:
- If the decedent is survived by one or more children or descendants, the spouse receives one-half of the intestate estate (Neb. Rev. Stat. §30-2202).
- If there are no descendants but at least one surviving parent, the spouse receives three-quarters of the estate (Neb. Rev. Stat. §30-2203).
- If there are no surviving descendants or parents, the spouse inherits the entire estate (Neb. Rev. Stat. §30-2203).
No Election for a Life Estate
Nebraska’s Probate Code does not include a mechanism for an intestate heir to convert their statutory share into a life estate. Life estates are typically created by deed or by explicit terms in a decedent’s will. The only election procedure under Nebraska law relates to a surviving spouse electing against a will’s provisions, not against intestate distribution (Neb. Rev. Stat. §30-2306).
Other Spousal Protections
Although you cannot elect a life estate, Nebraska law provides certain allowances to support the surviving spouse during estate administration:
- Exempt Property: The surviving spouse may claim up to $20,000 in personal property, household goods, and one motor vehicle free from creditor claims (Neb. Rev. Stat. §30-2301).
- Family Allowance: A reasonable allowance from estate assets for one year’s support may be set aside for the surviving spouse (Neb. Rev. Stat. §30-2302).
Disclaiming an Intestate Share
If an heir prefers not to accept their intestate share, they may disclaim it under the Nebraska Uniform Disclaimer of Property Interests Act. A disclaimer must comply with the requirements of Neb. Rev. Stat. §76-608. However, disclaiming simply waives the interest, which then passes to other heirs by statute—it does not create or convert the interest into a life estate (Neb. Rev. Stat. §76-608).
Helpful Hints
- Review intestate succession rules early in probate to understand your share.
- File any disclaimers promptly and in strict compliance with statutory timing and form requirements.
- Consider homestead and family allowances as supplemental support, not as a replacement for your statutory share.
- Engage a probate attorney to explore all available estate rights and protections.
- Communicate with other heirs to minimize disputes during estate administration.