In re Guardianship & Conservatorship of Kaiser, 891 N.W.2d 84

Loyola Kaiser (protected person, conservatorship appointed to Heartland Trust Company) and husband Albert executed wills; Albert later (2014) executed a new will and living trust that excluded Loyola and one of her children and left his trust 50/50 to two other children.
Heartland was appointed conservator for Loyola before Albert’s death in January 2015.
Heartland sought county court authorization to file, on Loyola’s behalf, for an elective share under Neb. Rev. Stat. § 30-2313 and § 30-2315 (protected person restriction), and to claim homestead/exempt/family allowances.
Evidence showed Loyola had over $1 million in assets, annual income estimated at ~$90,598 and expenses ~$82,510; she was elderly and in hospice care.
The county court granted authority to claim homestead/exempt/family allowances but denied authorization to file for any elective share, concluding that § 30-2315 factors (including Loyola’s assets and Albert’s 2014 estate planning) weighed against exercise of the right.
Heartland appealed the denial, arguing the court ignored the proper factors and that filing for the full elective share would best serve Loyola’s interests.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether conservator may be authorized to file an elective share for a protected surviving spouse	Heartland: filing for the full statutory elective share (50% of augmented estate) is in Loyola’s best interests; pecuniary benefit should control	Appellees/County court: § 30-2315 requires weighing multiple factors (protected person’s assets, related estate planning, tax/financial impacts, successors); factors show denial appropriate	Court affirmed denial; § 30-2315 governs and permits refusal after weighing listed factors; not arbitrary or unsupported
Whether Clarkson’s pecuniary approach controls decision for protected persons	Heartland relied on Clarkson to argue highest monetary value should govern	Court/Defendants: Clarkson’s pecuniary approach was superseded by the 1980 amendment to § 30-2315, which requires broader fact-specific analysis	Court held Clarkson’s minority pecuniary approach is superseded by statute; majority approach (consider all factors) applies

Clarkson v. First Nat. Bank of Omaha, 193 Neb. 201, 226 N.W.2d 334 (Neb. 1975) (discussed historical pecuniary approach for incompetent spouse elections; later superseded by statute)
In re Conservatorship of Franke, 292 Neb. 912, 875 N.W.2d 408 (Neb. 2016) (standard of review for conservatorship proceedings)
Hargesheimer v. Gale, 294 Neb. 123, 881 N.W.2d 589 (Neb. 2016) (statutory interpretation standard)
Stewart v. Nebraska Dept. of Rev., 294 Neb. 1010, 885 N.W.2d 723 (Neb. 2016) (plain-meaning rule for statutes)
Trumble v. Sarpy County Board, 283 Neb. 486, 810 N.W.2d 732 (Neb. 2012) (legislature presumed to know preexisting law)