In re Guardianship & Conservatorship of Kaiser
295 Neb. 532
| Neb. | 2017Background
- Loyola Kaiser was an elderly protected person with a conservator (Heartland Trust Company) appointed in July 2014; her husband Albert died in January 2015.
- Albert executed a revised estate plan in March 2014 (will and living trust) that distributed his assets to a trust naming only two children (Paula and Carol) and expressly excluded Loyola and James.
- Heartland, as conservator, filed in county court seeking authorization to elect the statutory elective share on Loyola’s behalf (and to claim homestead/exempt property and family allowance); the latter three were granted and are not appealed.
- Evidence at the hearing showed Loyola’s assets exceeded $1 million and projected annual income exceeded projected annual expenses; she was in hospice and advanced age.
- The county court denied Heartland authority to file for an elective share under Neb. Rev. Stat. § 30-2315, finding exercise of the right inconsistent with decedent’s 2014 estate planning and unnecessary given Loyola’s ample resources.
- Heartland appealed, arguing the court failed properly to weigh the § 30-2315 factors and that electing the statutory share (up to 50%) would best serve Loyola’s interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a conservator may be authorized under § 30-2315 to file for a protected spouse’s elective share | Heartland: court should authorize filing because elective share would maximize Loyola’s pecuniary recovery and serve her best interests | County court/Respondents: § 30-2315 requires consideration of multiple factors (assets, related estate planning, tax and successor impacts); given Albert’s 2014 plan and Loyola’s substantial resources, filing is unnecessary and contrary to decedent’s intent | Affirmed: court properly applied § 30-2315’s multi-factor test and reasonably denied authorization to file for the elective share |
Key Cases Cited
- Clarkson v. First Nat. Bank of Omaha, 193 Neb. 201 (1975) (discusses pecuniary approach for incapacitated spouse elections; later statutory amendment superseded that approach)
- In re Conservatorship of Franke, 292 Neb. 912 (2016) (standard of review for guardianship and conservatorship proceedings)
- Hargesheimer v. Gale, 294 Neb. 123 (2016) (appellate courts independently interpret statutes)