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Lane
Lane, JD, CFP, MBA, CRPS
Category: Finance
Satisfied Customers: 10846
Experience:  Law Degree, specialization in Tax Law and Corporate Law, CFP and MBA, Providing Financial & Tax advice since 1986
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Is my wife who I have been married to since 2005 entitled to

Customer Question

is my wife who I have been married to since 2005 entitled to half my estate even though I bought and paid for the house and interior possessions by me prior to our marriage
Submitted: 1 year ago.
Category: Finance
Expert:  Lane replied 1 year ago.
Hi,
There are really several issues here.
First, you can control WHO gets WHAT through your will.
Second, with no will, the Nebraska laws on intestacy (intestate succession) come into play.
Third, certain types of assets have agreements attached where they pass OUTSIDE of probate, so the will (or the will that's written for you under the intestacy rules) doesn't apply.
They are the following:
*life insurance proceeds
*property you’ve transferred to a living trust
*funds in an IRA, 401(k), or other retirement account
*securities held in a transfer-on-death account
*payable-on-death bank accounts
*vehicles held by transfer-on-death registration
*real estate held by transfer-on-death or beneficiary deed, or
*property you own with someone else in one of the forms of joint ownership.
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will.
Fourth, there is the rule that some states have that says the spouse cannot BE disinherited, and provide a remedy to the spouse if you use one of these devices to completely disinherit.
In those states that have adopted the Uniform Probate Code (UPC), a spouse can elect to take a portion of the deceased spouse's probate estate, non probate assets, AND property titled in either spouse's name.
Nebraska is one of the state that have only adopted part of the definition of an "augmented estate" as used in the UPC. In Nebraska, a disinherited spouse can elect to take a portion of the deceased spouse's PROBATE estate and some, but not all, non probate assets.
Here is the Nebraska statute on this:
http://nebraskalegislature.gov/laws/statutes.php?statute=30-2323
Remember that he elective share is voluntary, which means that if the spouse does not petition the court for the election, the deceased’s property will pass in accordance with the will. If your spouse agrees with your estate plan and consents to being disinherited, the court will not intervene.
Let me know if you have questions...
Lane