(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.
Notes of Decisions
Cited in
15
cases (
2 in the last 5 years), 1980–2026 · leading case:
Devney v. Devney, 886 N.W.2d 61 (Neb. 2016).
Devney v. Devney, 886 N.W.2d 61 (Neb. 2016).
· cites it 8× “The lan- guage of Neb. Rev. Stat. § 30-2316 (d) (Reissue 2008) contemplates the waiving of the spouse’s rights of inheritance only.”
In re Est. of Psota, 297 Neb. 570 (Neb. 2017).
· cites it 28× “Neb. Rev. Stat. § 30-2316 (Reissue 2016) applies when determining whether a surviving spouse has waived rights to the property or estate of a decedent spouse by sign- ing a written contract, agreement, or waiver.”
Simons v. Simons, 978 N.W.2d 121 (Neb. 2022).
· cites it 4× “Without limitation, this Agreement shall be con- strued to be a waiver similar to and with the same force and effect as provided by Neb. Rev. Stat. § 30-2316 and § 42-1001, et seq.”
In Re Est. of Peterson, 381 N.W.2d 109 (Neb. 1986).
· cites it 13× “The remaining question to be resolved is whether § 30-106 (Reissue 1964) or Neb. Rev. Stat. § 30-2316 (Reissue 1979) is to be applied in determining the validity and effect of the antenuptial agreement.”
In Re Est. of Stephenson, 503 N.W.2d 540 (Neb. 1993).
· cites it 9× “In Nebraska, an antenuptial agreement is statutorily authorized by the Nebraska Probate Code, specifically, Neb. Rev. Stat. § 30-2316 (Reissue 1989), which states: The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt…”
Marcovitz v. Rogers, 675 N.W.2d 132 (Neb. 2004).
· cites it 2× “Postnuptial Agreement Marcovitz argues that “[t]he only allowable postnuptial agreements in Nebraska are those made in contemplation of death, wherein Neb. Rev. Stat. § 30-2316 [(Reissue 1995)] authorizes waiver by contract of a surviving spouse’s ‘right of election.”
In Re Est. of Kopecky, 574 N.W.2d 549 (Neb. Ct. App. 1998).
· cites it 9× “In this appeal, we address the validity of a postnuptial agreement executed 16 months after the parties were married but 6 years before the enactment of Neb. Rev. Stat. § 30-2316 (Reissue 1995), which provides that the rights of a surviving spouse “may be waived .”
Trueblood v. Roberts, 732 N.W.2d 368 (Neb. Ct. App. 2007).
· cites it 6× “§ 30-2316 (Reissue 1989), which in turn expressly applies only to a surviving spouse's right to elective share, the spouse's right to certain statutory allowances, and the spouse's right to other benefits that would pass to the spouse "by intestate succession or by virtue of the…”
In Re Est. of Disney, 550 N.W.2d 919 (Neb. 1996).
· cites it 2× “See Neb. Rev. Stat. § 30-2316 (Reissue 1995).”
In Re Est. of Hill, 335 N.W.2d 750 (Neb. 1983).
· cites it 2× “§ 30-2316 (Reissue 1979) provides in relevant part: “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…”
In Re Est. of Pfeiffer, 658 N.W.2d 14 (Neb. 2003).
· cites it 13× “The court found Neb. Rev. Stat. §§ 30-2316 (d) and 30-2353(b)(3) (Reissue 1995) to be inapplicable to this case.”
In Re Est. of Jakopovic, 622 N.W.2d 651 (Neb. 2001).
· cites it 3× “Antenuptial agreements that waive the right of election are statutorily authorized by Neb. Rev. Stat. § 30-2316 (Reissue 1995), which provides in part: “The right of election of a sur *253 viving spouse and the rights of the surviving spouse to homestead allowance, exempt…”
— Neb. Rev. Stat. § 30-2316(b) — 1 case
In re Est. of Psota, 297 Neb. 570 (Neb. 2017).
“Neb. Rev. Stat. § 30-2316 (Reissue 2016) applies when determining whether a surviving spouse has waived rights to the property or estate of a decedent spouse by sign- ing a written contract, agreement, or waiver.”
— Neb. Rev. Stat. § 30-2316(b)(1) — 1 case
In re Est. of Psota, 297 Neb. 570 (Neb. 2017).
“Neb. Rev. Stat. § 30-2316 (Reissue 2016) applies when determining whether a surviving spouse has waived rights to the property or estate of a decedent spouse by sign- ing a written contract, agreement, or waiver.”
— Neb. Rev. Stat. § 30-2316(b)(2) — 1 case
In re Est. of Psota, 297 Neb. 570 (Neb. 2017).
“Neb. Rev. Stat. § 30-2316 (Reissue 2016) applies when determining whether a surviving spouse has waived rights to the property or estate of a decedent spouse by sign- ing a written contract, agreement, or waiver.”
— Neb. Rev. Stat. § 30-2316(d) — 3 cases
Devney v. Devney, 886 N.W.2d 61 (Neb. 2016).
“The lan- guage of Neb. Rev. Stat. § 30-2316 (d) (Reissue 2008) contemplates the waiving of the spouse’s rights of inheritance only.”
In Re Est. of Pfeiffer, 658 N.W.2d 14 (Neb. 2003).
“The court found Neb. Rev. Stat. §§ 30-2316 (d) and 30-2353(b)(3) (Reissue 1995) to be inapplicable to this case.”
In Re Est. of Jakopovic, 622 N.W.2d 651 (Neb. 2001).
“Antenuptial agreements that waive the right of election are statutorily authorized by Neb. Rev. Stat. § 30-2316 (Reissue 1995), which provides in part: “The right of election of a sur *253 viving spouse and the rights of the surviving spouse to homestead allowance, exempt…”
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