When the State Writes Your Estate Plan—And Gets It Wrong

Most people don’t plan to die without a will. But if you don’t have an estate plan in place, Nebraska law has a plan for you—and it may be the exact opposite of what you would want for your family.

In Nebraska, if someone dies without a will or trust, their assets are distributed under intestate succession. This is Nebraska’s default formula for how an estate is divided. Generally, assets pass to a surviving spouse and children in set shares. But depending on your family situation—whether you have children from a prior marriage, surviving parents, or other heirs—those shares can vary. The key thing to understand is this: when you don’t decide, the state does. And the consequences can be devastating for families, especially when a loved one has a disability.

Here’s an example. Let’s say you have a child or other family member who receives government benefits like SSI or Medicaid. If your estate passes to them under Nebraska’s intestacy laws, that inheritance will count as an asset. And suddenly, they no longer qualify for the very benefits they rely on for medical care, housing, or basic living expenses. I’ve worked with families who have seen thousands of dollars in healthcare and benefits disappear overnight because of this very scenario.

And here’s the hardest part: these families often aren’t aware that by not creating a plan, they’re putting their most vulnerable loved ones at risk. It’s common for families not to realize that not planning is still a plan—just not the one they would choose.

Thankfully, there’s a better way. By working with an experienced Nebraska estate planning attorney, you can proactively create a plan that protects your family. One of the most important tools is a Special Needs Trust—sometimes called a Supplemental Needs Trust. This allows assets to be set aside for the benefit of a loved one with a disability, without disrupting their eligibility for programs like SSI or Medicaid.

Depending on your situation, this might be a Third-Party Special Needs Trust (funded by family members or others) or a First-Party Special Needs Trust (funded with the beneficiary’s own assets, sometimes subject to Medicaid payback provisions). An attorney can help you choose the right structure for your family’s needs.

Estate planning can also address other potential risks. For example, if you have minor children or an adult child who may require ongoing care, your estate plan allows you to name guardians and conservators—rather than leaving those deeply personal decisions to the courts. Without a plan, the state could step in here as well.

So if you’ve been putting off planning because it feels overwhelming or you assume it can wait, I want to gently say this: the cost of inaction can be far greater than you think. And if you have a loved one with a disability, the need to protect them is even more urgent.

If you’re ready to talk about creating an estate plan in Nebraska—whether that means drafting a will, setting up trusts, or planning specifically for a loved one with special needs—I’d be honored to help. You can reach me at 402-259-0059 or zach@zandersonlaw.com. I help families throughout Nebraska with estate planning, wills and trusts, and special needs planning. Let’s make sure your family has the right plan—not the state’s.