Can a Nebraska Surviving Spouse Claim Part of a TOD Account Left to the Children?
By attorney, Lydia L. Mann, Esq.
In October 2026, the Kentucky Court of Appeals affirmed a ruling that a widow is entitled to one-half of about $2.33 million in transfer-on-death (TOD) investment accounts. The accounts named her late husband's children as beneficiaries, including a trust for one child. A lot of people assume a TOD or payable-on-death (POD) designation is the final word on an account. Usually it decides who the bank or brokerage pays. It may not decide everything a surviving spouse can claim.
Nebraska doesn't use Kentucky's dower law. But if the person who died was domiciled in Nebraska (meaning Nebraska was their true, permanent home at death), Nebraska's elective-share laws may affect what a surviving spouse can claim from certain nonprobate transfers. The spouse may elect any fraction up to one-half of the "augmented estate." That's a statutory calculation. It starts with the probate estate and then adds back certain transfers made during the marriage. Nebraska's POD-account statute expressly yields to the elective-share statutes. And the augmented-estate statute's retained-control language gives a basis for arguing that a qualifying revocable TOD transfer belongs in the calculation.
That doesn't mean a spouse automatically gets half of every TOD account. Qualifying property passing to the spouse is applied first toward the elective share. Life insurance and pensions payable to others are excluded. A spouse's written consent or a valid waiver can change the result. And the key add-back provision only reaches transfers made during the marriage.
Timing matters, too. The general election period is not the same as the separate deadlines for counting nonprobate transfers, so don't assume a later deadline protects every asset. If you're planning in a second marriage, get your beneficiary forms, will, trust, and any marital agreement working together. If you're a surviving spouse looking at large TOD accounts, get advice promptly.
What happened in the Kentucky case?
In Perrine v. Perrine, No. 2025-CA-1444-MR (Ky. Ct. App. Oct. 9, 2026), a widow and her late husband's adult children fought over about $2.33 million in investment accounts.
Bill and Nancy Perrine married in October 2015, decades after they first met. Each had children from an earlier marriage. They never signed a prenuptial or postnuptial agreement. Bill died in February 2024 without a will.
His probate estate was small. No real estate, and less than $19,000 in tangible personal property (think cars, furniture, the stuff you can pick up). Most of his wealth sat in two Schwab accounts: an IRA and a regular investment account, worth about $2.33 million combined. The beneficiary designations named three of his children individually and a supplemental-needs trust for the fourth. He also owned about $2 million in whole-life insurance payable to the children. Nancy didn't claim that.
Two late-life transactions mattered.
First, in 2023, Bill was hurt in a serious fall. Afterward, one of his children, acting under a power of attorney, signed a replacement beneficiary designation for an account at another firm. That account was later closed and the money moved into the Schwab investment account.
Second, one week before Bill died, seven checks of $18,000 each went from the investment account to his children and grandchildren. That's $126,000 in all.
The trial court ruled for Nancy on these issues without a full trial (a partial summary judgment). The Court of Appeals affirmed. It held that she was entitled to one-half of the value of the TOD accounts, and one-half of the challenged gifts to each recipient.
Here's the reasoning. Under the Kentucky statute that governed Bill's death, the surviving spouse of someone who died without a will was entitled to one-half of the decedent's surplus personal property. Bill could withdraw money, change beneficiaries, or close the accounts without asking his children. So the court treated the accounts as still his property until death, and subject to Nancy's statutory claim. The court also agreed that the children hadn't overcome a legal presumption that the arrangements were meant to cut Nancy out of her share.
Two caveats. The decision is recent, and further review in Kentucky is possible. And Kentucky amended its surviving-spouse statute in 2026 to expressly address several kinds of nonprobate assets. Perrine applied the version that governed Bill's 2024 death, not that amendment.
Why would Nebraska ask a different question?
Nebraska doesn't have dower. A Nebraska court wouldn't ask whether the accounts were part of the husband's "surplus personal property." It would ask three things:
Was the decedent domiciled in Nebraska at death?
Does the account count in the augmented estate?
If it does, how big is the spouse's elective share after qualifying property passing to the spouse is applied first?
Domicile comes first. If a married person domiciled in Nebraska dies, the surviving spouse has the right to elect. If the decedent wasn't domiciled here, the spouse's elective-share rights are generally governed by the law of the decedent's domicile. Neb. Rev. Stat. § 30-2313. Living in Nebraska, owning a Nebraska account, and being domiciled here at death aren't always the same thing. A snowbird who splits the year between Lincoln and Arizona is a good example of where this gets fuzzy.
Nebraska's augmented-estate approach goes back to 1974, when the state adopted a probate code modeled on the Uniform Probate Code. Probate versus nonprobate still matters, especially for procedure and deadlines. But whether an asset went through probate doesn't, by itself, decide whether it's included in the augmented estate.
How do TOD and POD accounts work in Nebraska?
Nebraska has one set of statutes for bank accounts and another for securities.
POD bank accounts
When the sole owner, or the last surviving owner, of a payable-on-death bank account dies, the money belongs to the surviving POD beneficiaries. If no beneficiary survives, it belongs to the estate of the last surviving owner. § 30-2723. A POD designation can't be changed by will. § 30-2724(b).
Section 30-2725 says these transfers are not testamentary (meaning they don't pass under a will) and aren't subject to estate administration. But look at how the statute opens: "Except as provided in sections 30-2313 to 30-2319 (elective share of surviving spouse)." The POD statute itself is telling you a surviving spouse's elective share still has to be considered.
TOD brokerage and investment accounts
Nebraska's TOD security registration statutes cover securities and "security accounts," which include a securities account with a broker. § 30-2734. A TOD designation "has no effect on ownership until the owner's death." The owner can cancel or change it "without the consent of the beneficiary." § 30-2739. In other words, while you're alive, the account is yours and the beneficiary has no say.
When the sole owner or last surviving owner dies, ownership passes to the surviving beneficiaries, subject to applicable law and the brokerage firm's requirements. If no beneficiary survives, the security belongs to the owner's estate. § 30-2740. The transfer happens because of your contract with the brokerage firm, and it isn't testamentary. It's also subject to Nebraska's revocation-on-divorce statute. § 30-2742(a).
What this means for your plan
Your will and your beneficiary forms need to tell the same story. A will can't change a POD designation. A TOD registration runs on its own contract and statutes. Updating your will doesn't update an old designation sitting on an account. That beneficiary form you signed years ago at the bank doesn't know you wrote a new will.
"Nonprobate" also doesn't mean untouchable. Separate statutes let the estate recover from deposit-account and securities beneficiaries when the estate's other assets can't cover claims, statutory allowances to the surviving spouse and children, taxes, and administration expenses. §§ 30-2726, 30-2743.
For claims and statutory allowances, two steps are required:
The personal representative (the person in charge of the estate) must receive a written demand from the surviving spouse, a creditor, a child, or someone acting for a child.
The proceeding must be commenced within one year after death.
Sending a demand is not the same as starting the proceeding. §§ 30-2726(b), 30-2743(b). This recovery process is also separate from the elective share.
Can a Nebraska surviving spouse claim part of a TOD account?
Sometimes. But it works by formula, not by an automatic half. Three questions drive the answer.
1. Does the account count in the augmented estate?
Section 30-2314 starts with the probate estate. It subtracts funeral and administration expenses, statutory allowances, and enforceable claims. Then it adds back certain transfers the decedent made "at any time during marriage" to someone other than the spouse, without getting full value in return. Those include:
transfers where the decedent kept, at death, the power to revoke the transfer or to use the principal for his or her own benefit;
transfers where the decedent kept possession, enjoyment, or the right to income;
property held with someone else with a right of survivorship; and
gifts made within three years of death, to the extent gifts to any one person exceeded $3,000 in a year.
The retained-control language gives a statutory basis for arguing that a qualifying revocable TOD transfer belongs in the augmented estate. Put simply: if you could still pull the money back or change the beneficiary up until you died, there's an argument it was still really yours. Whether a particular account qualifies depends on the account documents, when transfers happened, the statutory exclusions, and the applicable law.
In Chambers v. Bringenberg, 309 Neb. 888, 963 N.W.2d 37 (2021), a case about a transfer-on-death deed, the Nebraska Supreme Court described TOD deeds as "asset-specific will substitutes." It noted that property subject to a TOD deed is includable in the augmented estate. That case involved real estate. It didn't decide how brokerage or bank accounts are treated, and we haven't found a Nebraska appellate decision that squarely decides that question.
Nebraska courts also look at substance, not just paperwork. In In re Estate of Fries, 279 Neb. 887, 894–95, 782 N.W.2d 596, 603 (2010), the Nebraska Supreme Court addressed the retained-enjoyment provision. It explained that what matters is whether the parties intended the decedent to keep the benefit of the property in practice, not just what the transfer documents say. If you "gave away" the farm on paper but kept running it and pocketing the income, the court is going to notice.
2. Is the asset excluded?
Several rules can take an asset out of the calculation or limit what gets added back.
Life insurance and pensions payable to others. Section 30-2314(c)(1) excludes accident or life insurance proceeds, joint annuities, and pensions payable to someone other than the surviving spouse. We haven't found a Nebraska appellate decision resolving whether an IRA counts as a "pension" under this exclusion, so don't assume it either way. Employer retirement plans may also be governed by federal law with its own spousal rules.
Transfers the spouse joined in or consented to in writing. Property is excluded if the surviving spouse joined in the transfer or consented to it in a signed writing, before, during, or after the transfer. § 30-2314(c)(2). In In re Estate of Alberts, 293 Neb. 1, 875 N.W.2d 427 (2016), the surviving spouse had joined in the deeds at issue, so that property was excluded. But a signature on a different document, or on an earlier transaction, isn't necessarily consent to the transfer being challenged. See Fries, 279 Neb. 887, 782 N.W.2d 596.
Transfers made before the marriage. The transfers added back under § 30-2314(a)(1) have to have happened during the marriage. In In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009), assets the decedent put in a revocable trust before remarrying weren't included. The court explained that this lets a person provide for children from a prior marriage through a revocable trust without a later marriage upsetting that plan. That doesn't exclude every asset acquired before marriage. And Chrisp didn't decide how a TOD designation signed before the marriage should be treated.
Timing of the designation may be where Nebraska and Kentucky differ most. In Perrine, the children's argument that the arrangements predated the relationship didn't work. Because Nebraska's add-back provision speaks of transfers "during marriage," timing may carry more weight here. Still, don't assume it settles the question, especially if accounts were opened, changed, or funded during the marriage.
3. How large is the elective share?
The surviving spouse of a person domiciled in Nebraska may elect any fraction up to one-half of the augmented estate. § 30-2313(a). The augmented estate can also include the spouse's own property that came from the decedent. § 30-2314(a)(2). And qualifying property passing to the spouse is applied first toward the elective share. § 30-2319(a). So if your spouse already gets a lot from you, that counts against what they can claim.
Only if a balance is left over is it "equitably apportioned" among the people who received augmented-estate property, in proportion to what they received. § 30-2319(b). That's legalese for "everyone chips in fairly, based on how much they got."
The contribution statute has limits. It reaches original recipients, but later recipients only to the extent they still have the property or its proceeds. A person who owes contribution may give up the property or pay its value. § 30-2319(c).
So a TOD beneficiary may be asked to contribute. But the result is a calculation, not an automatic split of every account.
Waivers and marital agreements
A spouse can waive the elective share, along with the homestead, exempt-property, and family allowances, before or after marriage, through a signed written contract, agreement, or waiver. § 30-2316(a).
A waiver is unenforceable if the spouse proves either of two things:
the spouse didn't sign it voluntarily; or
the waiver was unconscionable (shockingly one-sided) when signed, and before signing, the spouse wasn't given fair and reasonable disclosure, didn't expressly waive disclosure in writing, and didn't have (and couldn't reasonably have had) adequate knowledge. § 30-2316(b).
Scope matters too. In In re Estate of Jakopovic, 261 Neb. 248, 622 N.W.2d 651 (2001), an antenuptial waiver limited to listed property didn't reach bonds the decedent had bought before the marriage but never listed. Those bonds were included in the augmented estate. If it's not in the agreement, don't count on the agreement covering it.
A postmarital waiver of estate rights is also a different question from whether a postnuptial agreement controls property division in a later divorce. See Devney v. Devney, 295 Neb. 15, 886 N.W.2d 61 (2016).
What deadlines apply to a surviving spouse?
Under § 30-2317(a), a surviving spouse elects by doing two things within the election period:
filing a petition in the court; and
mailing or delivering it to the personal representative, if there is one.
The election period ends nine months after death or six months after the will is probated, whichever is later. The court may extend the time for cause, but only if the spouse asks before the time runs out.
That general election period is separate from the rules about including nonprobate transfers:
Nine-month rule. Section 30-2314(c)(3) excludes property that passed other than by will or intestacy if a petition isn't filed or delivered under § 30-2317 within nine months of death.
One-year rule. Section 30-2317(a) separately excludes specified nonprobate transfers if the petition is filed more than one year after death.
Don't assume a later general election deadline, or an extension, preserves those assets. These clocks run separately, and missing the shorter one can take TOD money off the table.
If large accounts passed to someone else, talk with a Nebraska probate lawyer promptly. You don't need to gather every document before asking for help.
How might the Perrine facts look under Nebraska law?
This is an illustration, not a prediction. A Nebraska court would apply Nebraska statutes to the full record, and the result could go differently in either direction.
The investment account. The analysis would start with the retained-control language in § 30-2314(a)(1). Two facts would matter: when the designations were made, and when money moved into the account during the marriage.
The IRA. Nebraska's exclusion for pensions payable to others raises a question we haven't seen a Nebraska appellate court resolve for IRAs. Don't assume it either way, and federal law may also matter.
The life insurance. Life insurance payable to someone other than the spouse is excluded under § 30-2314(c)(1).
The final-week checks. Gifts made within three years of death are added back to the extent gifts to any one recipient exceeded $3,000 that year. If those were the only gifts to each recipient that year and nothing came back in return, roughly $15,000 of each $18,000 check could count. An act an agent performs under a power of attorney generally has the same effect as if the principal had done it. § 30-4024(7). But whether particular gifts were authorized, complied with the agent's duties, and qualify for inclusion takes separate analysis. An agent may make a gift only if the power of attorney expressly grants that authority, and gift authority has additional statutory limits unless the document says otherwise. § 30-4024(1)(b), (4); § 30-4040.
The beneficiary change by power of attorney. An agent may "create or change a beneficiary designation" only if the power of attorney expressly grants that authority. § 30-4024(1)(d). Express authority is necessary, but it isn't the only requirement. The agent's duties and other statutory limits still apply. Whether any particular change was proper depends on the document and the facts.
Intestacy. Bill's children weren't Nancy's children. Under Nebraska's intestacy statute (the default rules when there's no will), she would take one-half of the intestate estate, which here was small. § 30-2302(4). Depending on credits, waivers, valuations, and how each account is classified, the elective share could give her additional protection.
What should Nebraska families do now?
If you're planning your estate, especially in a second marriage
Start with one asset map. It should show how each significant asset actually passes at death: by will, POD, TOD, joint ownership, trust, or beneficiary designation. Then work through these questions with your lawyer:
What will my spouse actually receive from all sources?
Which designations were made or changed during the marriage?
Do we have a prenuptial or postnuptial agreement, waiver, or signed consent, and does it cover these specific accounts?
Which assets are retirement accounts or life insurance, which may follow different rules?
Does my power of attorney let my agent change beneficiaries or make gifts, and do I want it to?
Will enough probate property be left for expenses, claims, and statutory allowances?
If a divorce comes before the remarriage, review your beneficiary designations as part of that process. Before making changes, have counsel review any court order, settlement obligation, account restriction, and applicable retirement-plan rules. Nebraska's revocation-on-divorce statute addresses certain nonprobate designations, but it has exceptions. § 30-2333. Our firm also offers in-house co-parenting and divorce coaching to our clients at no additional fee.
If you're a surviving spouse: what to gather
The death certificate
Statements and the actual beneficiary designation forms for each account, with the dates they were signed or changed
Any power of attorney used to change accounts or beneficiaries
Any prenuptial, postnuptial, or other agreement you signed
The will or trust, if there is one, and the probate case number
A list of what you received or will receive from your spouse, including joint accounts, insurance, retirement benefits, and other property
You don't need every document before getting advice. And don't move, hide, or distribute disputed funds to defeat someone else's claimed rights.
What to expect: You have to give notice of the hearing to the people whose interests would be adversely affected. § 30-2317(b). You can withdraw the election any time before the court enters a final determination. § 30-2317(c).
If you're a child named as a TOD or POD beneficiary
The bank or brokerage may pay you quickly. That doesn't necessarily close the question. If a surviving spouse elects, the court determines the elective share. It can fix the liability of people who hold or have an interest in augmented-estate property, even property already distributed, within the limits of the contribution statute. §§ 30-2317(d), 30-2319(c). If a stepparent survives, consider getting advice before spending or dividing a large account.
Don't forget inheritance tax
Avoiding probate doesn't mean avoiding Nebraska inheritance tax. The tax reaches transfers intended to take effect at or after death, along with certain jointly held property. § 77-2002. In In re Estate of Lofgreen, 312 Neb. 937, 981 N.W.2d 585 (2022), an inheritance-tax case, the Nebraska Supreme Court looked at the surrounding circumstances of the transfers rather than the form of the documents.
Nonprobate status alone doesn't create an inheritance-tax exemption. But interests passing to a surviving spouse are exempt from Nebraska inheritance tax. § 77-2004(3). Federal estate, gift, and income-tax questions need separate analysis.
Questions to ask a Nebraska lawyer
Would each of my accounts count in my spouse's augmented estate, and why?
Would my spouse's signed consent to a particular designation make sense, and what disclosure should come with it?
Does our prenuptial or postnuptial agreement cover nonprobate accounts specifically?
How do my IRA, 401(k), and life insurance fit into this?
For a surviving spouse: Which deadlines apply to me, and what has to happen before each one?
Frequently asked questions
Does a TOD account avoid probate in Nebraska?
Generally, yes. Nebraska treats POD bank accounts and TOD securities registrations as nontestamentary transfers, meaning they pass under the account terms rather than through a will. But avoiding probate doesn't necessarily avoid the elective share, statutory allowances, creditor claims, or inheritance tax.
Can my will override the beneficiary on my POD or TOD account?
For a POD bank account, no. Nebraska law says a POD designation can't be altered by will. A TOD securities registration takes effect under the registration contract and Nebraska's TOD statutes, not your will. Update beneficiary forms directly, and review them alongside your will.
Can I name my children instead of my spouse as TOD beneficiaries?
Yes. But if you're married and domiciled in Nebraska, a revocable designation made during the marriage may become part of the augmented-estate analysis if your spouse elects. A valid waiver or your spouse's written consent can change that analysis.
Does my spouse automatically get half of my TOD account?
No. A surviving spouse may elect up to one-half of the augmented estate, not half of each account. Qualifying property passing to the spouse is applied first. Any remaining balance is apportioned among recipients of augmented-estate property, within the limits of the contribution statute.
How long does a surviving spouse have to claim the elective share?
The general election period ends nine months after death or six months after the will is probated, whichever is later. Within that period, the petition has to be filed with the court and mailed or delivered to the personal representative, if there is one. Separate rules can exclude nonprobate transfers if a petition isn't filed or delivered within nine months of death, or is filed more than one year after death. Because these periods aren't interchangeable, get advice promptly rather than counting on the latest possible date.
What if we signed a prenuptial agreement?
A valid prenuptial or postnuptial waiver can affect the elective share and statutory allowances. Whether it's enforceable depends on voluntariness and on the statutory requirements about unconscionability, disclosure, waiver of disclosure, and knowledge. The agreement's scope matters too, so someone has to actually read the document.
If someone dies without a will in Nebraska, does the spouse get everything?
Not necessarily. The spouse's share depends on whether there are surviving descendants, whether they're also the spouse's descendants, whether there are surviving parents, and the size of the intestate estate. Under the current statute, some categories give the spouse the first $150,000 plus half the balance, so a smaller estate in those categories can pass entirely to the spouse. The $150,000 figure reflects a 2026 amendment. If the death happened before that change took effect, ask a lawyer which version applies.
Are IRAs, 401(k)s, and life insurance treated like a TOD brokerage account?
Not necessarily. Nebraska's augmented-estate statute excludes life insurance and pensions payable to someone other than the spouse. Whether a particular IRA falls within that exclusion hasn't been resolved by any Nebraska appellate decision we've found. Employer plans may also be governed by federal law with its own spousal rules.
Are there other spousal protections besides the elective share?
Yes. For deaths on or after January 1, 2027, the homestead allowance is $25,000 and the exempt-property entitlement is up to $17,500, subject to statutory conditions. The personal representative may determine a family allowance of up to $25,000, but the court may set a larger or smaller reasonable allowance. If the estate can't cover statutory allowances, POD and TOD transfers can be reached through the procedures described above.
Does the Kentucky Perrine ruling apply in Nebraska?
No. Perrine applied Kentucky's dower statute, and Nebraska courts apply Nebraska's elective-share and augmented-estate statutes. The case is a useful warning about TOD accounts in second marriages. It isn't Nebraska precedent or a prediction of a Nebraska result.
The takeaway
A beneficiary designation tells the bank who to pay. It doesn't necessarily decide what a surviving spouse is entitled to, in Kentucky or in Nebraska.
Zachary W. Anderson Law helps Nebraska families coordinate beneficiary designations, wills, trusts, and marital agreements. Depending on the matter, we work with personal representatives, surviving spouses, or beneficiaries in county court probate matters. We don't represent opposing parties in the same dispute. If a TOD or POD account is part of your plan or your family's estate, we're glad to talk through your situation.
This article provides general education, not advice about a particular estate or account. Rights and deadlines depend on the governing law and facts. Do not rely on this article to calculate a deadline or change beneficiary designations. Reading it or contacting our firm does not create an attorney-client relationship. We do not represent you and will not act on your behalf unless the retainer agreement is signed and the required retainer is received. Please seek prompt advice about your circumstances.