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

No one plans to die without a will. But if you don’t create an estate plan, Nebraska law already has one lined up for you—and it might be the exact opposite of what you’d want for your family.

Dying without a will or trust means your estate will be handled through intestate succession, Nebraska’s legal default for distributing assets. In many cases, this leads to outcomes families never intended—especially when a loved one receives government benefits like SSI or Medicaid.

Here’s why planning matters, what could go wrong without it, and how to protect your most vulnerable loved ones.

What Is Intestate Succession in Nebraska?

When someone dies without a will, their assets don’t just disappear—they’re distributed under Nebraska’s intestacy laws (Neb. Rev. Stat. §§ 30-2301 to 30-2309). These laws decide who inherits based on a strict formula.

Generally:

• If you have a spouse and children, your estate is divided between them in set shares.

• If you have children from a prior marriage, the shares shift.

• If you have no spouse or children, your estate may go to parents, siblings, or more distant relatives.

This might sound straightforward, but it rarely reflects the complexity of real families—blended households, aging parents, loved ones with disabilities, or estranged relatives. The key issue is this: you lose control. And once that happens, the consequences can be serious.

Why This Can Be Devastating for Families with Special Needs

Here’s the reality many families don’t see coming: if your estate passes to a loved one with a disability under Nebraska’s intestacy laws, it could jeopardize their access to critical government benefits.

Benefits like:

• Supplemental Security Income (SSI)

• Medicaid

• Housing assistance

• State or county-level disability support

These programs are often means-tested, meaning eligibility depends on a person’s income and assets. Even a small inheritance—passed unintentionally through intestate succession—can disqualify someone from receiving benefits, forcing them to spend the money down before they can requalify.

I’ve worked with Nebraska families who saw years of healthcare and benefits disappear overnight—not because they made a mistake, but because they didn’t have a plan in place.

How a Special Needs Trust Protects Your Loved One

The good news is that Nebraska law allows you to plan ahead for these scenarios—and protect your loved one’s benefits.

One of the most effective tools is a Special Needs Trust (also known as a Supplemental Needs Trust). This type of trust holds and manages assets on behalf of a person with a disability, without counting those assets toward eligibility for SSI or Medicaid.

There are two primary types:

Third-Party Special Needs Trust

• Funded by someone other than the person with a disability (e.g., parents, grandparents)

• Not subject to Medicaid reimbursement after the beneficiary’s death

• Often part of a broader estate plan

First-Party Special Needs Trust

• Funded with the beneficiary’s own assets (e.g., a legal settlement, inheritance)

• Subject to Medicaid payback provisions in most cases

An experienced estate planning attorney can help you decide which type of trust is appropriate based on your family’s situation.

Naming Guardians and Conservators for a Child with Special Needs

Estate planning doesn’t just cover assets—it also helps you name the people you trust to care for your child or vulnerable adult if something happens to you.

Without a will or plan:

• The court chooses a guardian or conservator

• Family members may disagree or litigate over who should step in

• The outcome may not reflect your values or your child’s needs

Planning ahead gives you the say—not the court.

Why Not Planning Is Still a Plan (Just Not a Good One)

It’s easy to put off estate planning. It feels heavy. It feels complicated. It feels like something that can wait.

But the truth is: not making a plan is still a plan. It just happens to be Nebraska’s plan—not yours.

And if you have a loved one with special needs, the risks of inaction are even higher.

Ready to Talk?

I work with families throughout Nebraska to create estate plans that are thoughtful, flexible, and protective—especially for loved ones with disabilities. That includes wills, revocable living trusts, and special needs planning tailored to your values and circumstances.

If you’re ready to get started—or even just want to ask a few questions—I’m here to help.

Call me at (402) 259-0059 or email zach@zandersonlaw.com to schedule a consultation.

Let’s make sure your plan reflects what you want—not what the state assumes.

Frequently Asked Questions About Nebraska Estate Planning and Special Needs Trusts

What happens if I die without a will in Nebraska?

Your estate is distributed under Nebraska intestate succession laws, which divide your assets among your surviving spouse, children, or other relatives based on a formula. You lose control over who inherits—and how much.

Can an inheritance affect SSI or Medicaid benefits?

Yes. If a person with a disability inherits money or assets directly, it can disqualify them from means-tested programs like SSI or Medicaid until the inheritance is spent down.

How does a Special Needs Trust help?

A Special Needs Trust allows a loved one with a disability to benefit from an inheritance or gift without losing eligibility for government programs. The assets are owned by the trust—not the individual.

What’s the difference between a First-Party and Third-Party Special Needs Trust?

• A Third-Party Trust is funded by someone else (e.g., a parent) and is not subject to Medicaid recovery.

• A First-Party Trust is funded with the beneficiary’s own money and is usually subject to Medicaid payback provisions after their death.

Can I name a guardian for my child in a will?

Yes. Your will is where you name a guardian (for personal care decisions) and a conservator (for financial decisions) for minor children or vulnerable adults.

Is estate planning expensive?

Not planning can be much more expensive—especially when it leads to lost benefits, court-appointed guardianships, or family disputes. Many attorneys offer flat-fee estate plans that cover essential documents like wills, trusts, and powers of attorney.