In re Estate of Alberts, 293 Neb. 1

Emil Alberts died in June 2013, survived by his spouse Lois and two nephews, Mark and Mike Alberts (co-personal representatives and trust beneficiaries).
Lois directed an attorney to file a petition electing one-half of Emil’s augmented estate under Neb. Rev. Stat. § 30-2313; the petition was signed and filed by her attorney.
Seventeen months before Emil’s death, Emil and Lois executed complementary estate documents and four deeds; two deeds conveyed the disputed real estate (valued at $2,529,460) to Emil as trustee of Emil’s revocable trust, and both Emil and Lois signed those deeds.
Appellants objected that (1) the petition was invalid because Lois did not personally sign/file it, and (2) the trust-transferred property should be included in the augmented estate (i.e., not excluded by § 30-2314(c)(2)) because Emil retained powers over the revocable trust.
The county court upheld the petition’s validity and included the property value in the augmented estate; the Supreme Court affirmed the petition’s validity but held the property was excluded from the augmented estate under § 30-2314(c)(2) because the transfer was to a "person" (the trust) and was joined in by the surviving spouse.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of elective-share petition: may an attorney sign/file it on surviving spouse's behalf?	Appellants: petition void because Lois did not personally sign/file; statute requires spouse to exercise during his/her lifetime.	Lois: she authorized counsel to file; statute does not require personal signature or filing by spouse.	Petition valid: attorney may file on spouse's instruction; power to act for client presumed valid absent proof to contrary.
Inclusion of property transferred to decedent's revocable trust in augmented estate	Appellants: property should be included because Emil retained revocation and enjoyment powers; thus § 30-2314(c)(2) exclusion inapplicable.	Lois: her signature on deeds was consent; § 30-2314(c)(2) excludes property transferred by decedent to a person when deed was joined in by surviving spouse.	Property excluded: trust qualifies as a "person"; deeds were joined in by Lois, so § 30-2314(c)(2) excludes the property from the augmented estate.

In re Estate of Fries, 279 Neb. 887 (Neb. 2010) (distinguishes transfers signed by surviving spouse that are not the decedent’s transfer and discusses when written consent excludes property from augmented estate)
Robertson v. Jacobs Cattle Co., 285 Neb. 859 (Neb. 2013) (statutory-construction principles and appellate review of legal questions)
Koch v. Koch, 226 Neb. 305 (Neb. 1987) (attorney’s power to act for client presumed valid until disproved)
Black v. Brooks, 285 Neb. 440 (Neb. 2013) (appellate limitations on adding language to statutes)
In re Estate of Lamplaugh, 270 Neb. 941 (Neb. 2006) (standards for appellate review of probate judgments)