(a) The augmented estate is the estate, first, reduced by the aggregate amount of funeral and administration expenses, homestead allowance, family allowances and exemptions, and enforceable claims and, second, increased by the aggregate amount of the following items:

(1) The value of property transferred by the decedent at any time during marriage to the surviving spouse to or for the benefit of any person other than a bona fide purchaser or the surviving spouse, but only to the extent to which the decedent did not receive adequate and full consideration in money or money's worth for such transfer, if such transfer is a transfer of any of the following types:

(i) Any transfer under which the decedent retained at death the possession or enjoyment of, or right to income from, the property;

(ii) Any transfer to the extent to which the decedent retained at death a power alone or with any other person to revoke such transfer or to consume, invade, or dispose of the principal of the property for his or her own benefit;

(iii) Any transfer whereby the property is held at death by the decedent and any other person or persons with right of survivorship; or

(iv) Any transfer to a donee or donees made by the decedent within three years of death to the extent to which the aggregate amount of such transfers to any one donee in any of such years exceeded three thousand dollars; and

(2) The value of property owned by the surviving spouse at death of the decedent and the value of property transferred by the surviving spouse at any time during marriage to the decedent to or for the benefit of any person other than the decedent, but exclusive of all income earned thereby before death of the decedent and only to the extent both to which such property would have been included in the augmented estate of the surviving spouse if the surviving spouse had predeceased the decedent and to which such property is derived from the decedent by any means other than testate or intestate succession without adequate and full consideration in money or money's worth, if such property is property of any of the following types:

(i) Any property derived from the decedent including, without limitation to, any beneficial interest of the surviving spouse in a trust created by the decedent during his or her lifetime, any property appointed to the surviving spouse by the exercise by the decedent of a general or a special power of appointment also exercisable in favor of any person other than the surviving spouse, any proceeds, including accidental death benefits, of insurance upon the life of the decedent together with any lump sum immediately payable and the commuted value of any proceeds of annuity contracts under which the decedent was the primary annuitant attributable to the premiums for such insurance paid by the decedent or by his or her employer, his or her partner, a partnership of which he or she was a member, or any of his or her creditors, the commuted value of any amounts or proceeds payable after death of the decedent under public or private pension, disability, compensation, death benefit, or retirement plan, exclusive of the federal social security, railroad retirement, or like system, by reason of service performed or disability incurred by the decedent, and the value of any share of the surviving spouse resulting from rights in community property in Nebraska or elsewhere formerly owned with the decedent; or

(ii) Any property owned by the surviving spouse at death of the decedent or previously transferred by the surviving spouse, except to the extent to which the surviving spouse establishes that such property was derived from any source other than the decedent.

A bona fide purchaser under (1) above is a purchaser for value in good faith and without notice of any adverse claim; and the attachment of stamps to an instrument and their cancellation under sections 76-901 to 76-908 are prima facie evidence that the transferee of the transfer thereby effected is a bona fide purchaser.

(b) Property included in the augmented estate under subsection (a) of this section is valued at the following dates:

(1) For property transferred by the decedent by irrevocable gift during lifetime, at the date, if before death of the decedent, the donee first came into possession or enjoyment of such property;

(2) For property transferred by the surviving spouse of the decedent, at the date, if before death of the decedent, such transfer became irrevocable; and

(3) For all property not valued at any other date, at the date of death of the decedent.

(1) Accident or life insurance proceeds, joint annuity, or pension payable to any person other than the surviving spouse of the decedent;

(2) Property transferred by the decedent to any person other than the surviving spouse by any bill of sale, conveyance, deed, or gift or by any other means of transfer either by an instrument of transfer joined in by the surviving spouse of the decedent or with the consent to transfer manifested before or after death of the decedent by a writing signed by the surviving spouse of the decedent before, contemporaneously with, or after the transfer; and

(3) Property transferred by or from the decedent to any person by any means other than intestate succession or testamentary disposition if a petition is not filed or delivered under section 30-2317 within nine months of the death of the decedent.

Annotations

1. Calculating augmented estate

2. Purpose

3. Miscellaneous

1. Calculating augmented estate

Under subdivision (a)(1)(i) of this section, a transfer "under which the decedent retained at death the possession or enjoyment of, or right to income from, the property" does not require that the decedent's right to possession of, enjoyment of, or income from the property be recorded in the instrument of transfer. A decedent retains possession or enjoyment of, or the right to income from, property when it is understood that the decedent will retain such an interest despite the transfer. And such an understanding need not be express; it can be implied from the circumstances surrounding the transfer. In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).

Under subdivision (c)(2) of this section, if a spouse had agreed to a transfer, the value of the transferred property is not included in the transferring spouse's augmented estate. In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).

What is significant for purposes of subdivision (a)(1)(i) of this section is whether the parties to a transfer intended the decedent to functionally retain possession or enjoyment of, or the right to income from, the property—not whether the written instrument of transfer reflects that intent. In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).

Under this section, only a decedent's transfers to others during his or her marriage to the surviving spouse are included in the augmented estate for calculating a surviving spouse's elective share. In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).

Under this section, the probate estate is augmented by first reducing the estate by specified obligations and liabilities and then increasing the estate by the value of specified properties and transfers. In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).

Whether premarital trust assets are part of the augmented estate for determining a surviving spouse's elective share is governed by this section, not section 30-3850 of the Nebraska Uniform Trust Code. In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).

A spouse's labor does not become a contribution "in money's worth" such as to take one-half the value of jointly produced and acquired assets out of the augmented estate computation provided for in this section. In re Estate of Carman, 213 Neb. 98, 327 N.W.2d 611 (1982).

An augmented estate formula includes property added that decedent gave to others during his lifetime and property held jointly by decedent and others. In re Estate of Florey, 212 Neb. 665, 325 N.W.2d 643 (1982).

Property owned in joint tenancy is not included in the estate of the deceased joint tenant except for inheritance tax purposes. In re Estate of Walters, 212 Neb. 645, 324 N.W.2d 889 (1982).

2. Purpose

The dual purpose of the elective share provisions is to prevent a spouse from being denied a fair share of the decedent's estate and also to prevent the surviving spouse from obtaining more than a fair share of the estate when he or she has already received a share of the estate through some other means. To achieve this purpose, the value of certain property transferred by the decedent during marriage is included in the decedent's augmented estate under subdivision (a)(1) of this section. In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).

The exclusion of premarital trusts from the augmented estate was intended to permit a person to provide for children by a prior marriage, as by a revocable living trust, without concern that such provisions will be upset by later marriage. In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).

3. Miscellaneous

The signature of a testator's surviving spouse on a deed was evidence of a consent to transfer within the meaning of this section. In re Estate of Alberts, 293 Neb. 1, 875 N.W.2d 427 (2016).

Subdivision (a)(1)(i) of this section does not include the word "document" or even require a writing evidencing a transfer. In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).

The concepts of section 30-2722 should inform the interpretation of this section regarding the evidence necessary to establish the source of property owned by the surviving spouse. In re Estate of Ross, 19 Neb. App. 355, 810 N.W.2d 435 (2011).

When there is reason to doubt the credibility of the surviving spouse's testimony, the court need not accept his or her testimony that the source of the accounts was other than the decedent. In re Estate of Ross, 19 Neb. App. 355, 810 N.W.2d 435 (2011).