WHEN TO USE THIS FORM: This form is to be used by a domiciliary spouse who wishes to elect to take the elective share.
The election must be asserted by petition filed in the probate court within the later of nine (9) months after the date of death or six (6) months after probate of Decedent's Will. This time may be extended by the Court, if the surviving spouse shows cause prior to the expiration of the time limit. Nebraska Probate Code § 30-2317(a).
HOW TO USE THIS FORM: Complete Form 326, Worksheet for Computation of Augmented Estate, and attach to the Petition.
In paragraph 2 the Petitioner should allege the appropriate filing time. Petitions filed later than nine (9) months or a year after the Decedent's death will have adjustments in the computation of the Augmented Estate. See discussion below.
In paragraph 4 state any waivers of the rights of election, Nebraska Probate Code § 30-2316.
WHEN NOT TO USE THIS FORM: Do not use unless the spouse decides to exercise the right to election.
COMMENTS: The following summaries of relevant statutes are relevant:
Nebraska Probate Code § 30-2313. (a) Right to Elective Share. If a married person domiciled in this state dies, the surviving spouse has a right of election to take an elective share of a fraction not to exceed one-half of the Augmented Estate under the limitations and conditions hereinafter stated.
Nebraska Probate Code § 30-2313. (b) Right to Elective Share. If a married person not domiciled in this state dies, the right, if any, of the surviving spouse to take an elective share in property of this state and the amount or extent of such share are governed by the law of the Decedent's domicile at death.
Nebraska Probate Code § 30-2314(c). Property Not Included in Augmented Estate. (1) The Augmented Estate does not include accident or life insurance proceeds, joint annuity or pension payable to any person other than the surviving spouse, (2) it does not include property transferred by Decedent if the surviving spouse joined in the transfer instrument or consented to the transfer in writing at any time before, contemporaneously with or after the transfer, and (3) it does not include 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 within nine (9) months of the Decedent's death.
Nebraska Probate Code § 30-2315. Right of Election Personal to Surviving Spouse. The right of election of the surviving spouse may be exercised only during lifetime by the surviving spouse. In the case of a protected person, the right of election may be exercised only by Order of the Court in which protective proceedings as to the protected person's property are pending, after finding that exercise is the best interests of the protected person during the protected person's probable life expectancy, and of the children, family members, or other successors to the Decedent or to the protected person due regard being given to the factors set forth in Nebraska Probate Code § 30-2315.
Nebraska Probate Code § 30-2317(a). Petition filed later than one year after Decedent's death. Nonprobate transfers described in Nebraska Probate Code§ 30-2314(a)(1) (Part II on Worksheet Form 326) shall not be included within the Augmented Estate for purposes of computing elective share if petition is filed later than one year after death.
Nebraska Probate Code § 30-2319. Liability of Others for Balance of Elective Share. Only original transferees from, or appointees of, the Decedent and their donees to the extent the donees have the property or its proceeds are subject to the contribution to make up the elective share of the surviving spouse. A person liable to contribution may choose to give up the property transferred or to pay its value as of the time it is considered in computing the Augmented Estate.
