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In re Estate of Psota

Supreme Court of Nebraska

August 25, 2017

In re Estate of Eldon R. Psota, deceased.
v.
James Psota and Janice Brown, Copersonal Representatives of the Estate of Eldon R. Psota, DECEASED, APPELLEES. Sharlene Psota, appellant,

         1. Decedents' Estates: Appeal and Error. An appellate court reviews probate cases for error appearing on the record made in the county court.

         2. Decedents' Estates: Judgments: Appeal and Error. When reviewing questions of law in a probate matter, an appellate court reaches a conclusion independent of the determination reached by the court below.

         3. Decedents' Estates: Contracts: Waiver. 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 signing a written contract, agreement, or waiver.

         4. Statutes: Legislature: Presumptions. In enacting a statute, the Legislature must be presumed to have knowledge of all previous legislation upon the subject.

         5. Statutes: Legislature: Presumptions: Intent. The Legislature is presumed to know the language used in a statute, and if a subsequent act on the same or similar subject uses different terms in the same connection, the court must presume that a change in the law was intended.

         6. Statutes. It is not within the province of a court to read a meaning into a statute that is not warranted by the language; neither is it within the province of a court to read anything plain, direct, or unambiguous out of a statute.

         7. Decedents' Estates: Waiver: Proof. Under the plain language of Neb. Rev. Stat. § 30-2316(b) (Reissue 2016), a surviving spouse must satisfy the requirements of both subsections (b)(1) and (b)(2) in order to prove a waiver signed by the surviving spouse is unenforceable.

         [297 Neb. 571] Appeal from the County Court for Valley County: Alan L. Brodbeck, Judge. Affirmed.

          Michael J. O'Bradovich, PC, for appellant.

          Mark L. Eurek, of Law Office of Mark L. Eurek, P.C., for appellee Janice Brown.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy. Kelch, and Funke, JJ.

          Stacy, J.

         Sharlene Psota filed an application to be treated as an omitted spouse under a section of the Nebraska Probate Code[1]after her husband Eldon R. Psota made no provision for her in his will. The copersonal representatives of Eldon's estate resisted the application, arguing Sharlene waived all her rights to Eldon's estate in a prenuptial agreement. The probate court denied the application, and Sharlene filed this appeal. We affirm the decision of the probate court.

         FACTS

         Sharlene and Eldon married on September 24, 2011. It was a second marriage for both parties, and each had children from a prior marriage. Approximately 1 week before their wedding, Eldon suggested a prenuptial agreement, and Sharlene agreed. Six days before the wedding, they met with an attorney selected by Eldon. A few days later, they met with the attorney again and reviewed a draft prenuptial agreement. Sharlene requested revisions to the agreement, which the attorney incorporated. They returned to the attorney's office the day before their wedding and signed the final agreement.

         As pertinent to the issues on appeal, the agreement recited that "both parties are desirous of completely and absolutely disclaiming any right of inheritance or any interest of any [297 Neb. 572] nature whatsoever in and to the property of the other party that was accumulated prior to their forthcoming marriage." It further provided that "each party has made frank and full disclosure each to the other of all property of every nature whatsoever that they now hold." The agreement provided that each party "absolutely and completely" disclaimed "any interest of any nature whatsoever" that he or she had in the real and personal property of the other and acknowledged that "full and complete disclosure" had been made of all property owned by the other.

         The agreement recited that attached as "Exhibit 'A'" was Eldon's "statement of the property" and his "most recent income tax return, " and attached as "Exhibit 'B'" was Sharlene's statement of property and most recent income tax return. Both exhibits were attached to the agreement and contained lists of each party's real property, without any valuations. Neither exhibit listed any personal property, and no income tax returns were attached. With respect to the property disclosures, the agreement provided: "Each party understands that said [property] statements are made in general terms, and that each party does agree and acknowledge that [he or she does], in fact, have personal knowledge of the full extent of the other's property, and that said [property lists] are only representative in nature." The agreement further stated that each party

shall have the right to dispose of [his or her] entire estate and each does waive any and all interest of any nature whatsoever upon the estate of the other, and each specifically waives herein a spouse's elective share, homestead allowance, exempt allowance, family allowance, augmented estate, and all testate and intestate rights.

         Eldon died in August 2013. His will, executed approximately 8 years before his marriage to Sharlene, did not leave anything to her. The inventory of Eldon's estate contained approximately $10 million in assets, the bulk of which related to the real property he owned.

         [297 Neb. 573] In November 2015, Sharlene filed an application to be treated as an omitted spouse under Neb. Rev. Stat. § 30-2320 (Reissue 2016). That statute provides that if a testator fails to provide by will for a surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he or she would have received if the decedent had left no will.[2] The statute also provides that the rights of the omitted spouse can be "waived pursuant to section 30-2316."[3] Neb. Rev. Stat. § 30-2316 (Reissue 2016) allows a surviving spouse to waive the right of election "by a written contract, agreement, or waiver signed by the surviving spouse" either before or after the marriage.

         Eldon's estate resisted Sharlene's application, arguing she waived her rights to Eldon's estate in the prenuptial agreement. After holding an evidentiary hearing at which Sharlene testified and the prenuptial agreement was admitted into evidence, the county court found the prenuptial agreement was valid under § 30-2316. It held that Sharlene had waived the right to take as an omitted spouse, and denied her application for share of an omitted spouse. Sharlene filed this timely appeal, which we moved to our docket.[4]

         ASSIGNMENTS OF ERROR

         Sharlene assigns, restated and consolidated, that the trial court erred in (1) finding she was aware of the value of Eldon's real property, when it was not valued in the prenuptial agreement; (2) finding she should have known the value of Eldon's estate when the prenuptial did not list his personal property or contain his tax returns; and (3) finding the prenuptial agreement was enforceable when it failed to meet several statutory requirements on its face.

         [297 Neb. 574] STANDARD OF REVIEW

         An appellate court reviews probate cases for error appearing on the record made in the county court.[5]

         When reviewing questions of law in a probate matter, an appellate court reaches a conclusion independent of the ...


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