30-2325. Source, determination, and documentation.

If the estate is otherwise sufficient, property specifically devised is not used to satisfy rights to homestead and exempt property. Subject to this restriction, the surviving spouse, the guardians of the minor children, or children who are adults may select property of the estate as homestead allowance and exempt property. After giving such notice as the court may require in a proceeding initiated under the provisions of section 30-2405, the personal representative may make these selections if the surviving spouse, the children or the guardians of the minor children are unable or fail to do so within a reasonable time or if there are no guardians of the minor children. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as homestead allowance or exempt property. The personal representative may determine the family allowance in a lump sum not exceeding nine thousand dollars for a decedent who dies before January 1, 2011, and twenty thousand dollars for a decedent who dies on or after January 1, 2011, or periodic installments not exceeding seven hundred fifty dollars per month for one year for a decedent who dies before January 1, 2011, and one thousand six hundred sixty-six dollars and sixty-seven cents per month for one year for a decedent who dies on or after January 1, 2011. The personal representative may disburse funds of the estate in payment of the family allowance and any part of the homestead allowance payable in cash. The personal representative or any interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the court for appropriate relief, which relief may provide a family allowance larger or smaller than that which the personal representative determined or could have determined.

The homestead allowance, the exempt property, and the family allowance as finally determined by the personal representative or by the court, shall vest in the surviving spouse as of the date of decedent's death, as a vested indefeasible right of property, shall survive as an asset of the surviving spouse's estate if unpaid on the date of death of such surviving spouse, and shall not terminate upon the death or remarriage of the surviving spouse.

Source

Annotations

Under section 30-2324 and this section, a right to allowances for homestead, exempt property, and unpaid spousal support survives the claimant's death to the extent of unpaid support. In re Estate of Stephenson, 243 Neb. 890, 503 N.W.2d 540 (1993).

The rights granted herein are specific, vested, and indefeasible and accrue to the recipient statutorily upon the decedent's death. In re Estate of Carman, 213 Neb. 98, 327 N.W.2d 611 (1982).