30-2353. Effect of divorce, annulment, and decree of separation.

(a) An individual who is divorced from the decedent or whose marriage to the decedent has been dissolved or annulled by a decree that has become final is not a surviving spouse unless, by virtue of a subsequent marriage, he or she is married to the decedent at the time of death. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section.

(b) For purposes of parts 1, 2, 3, and 4 of this article and of section 30-2412, a surviving spouse does not include:

(1) an individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment or dissolution of their marriage, which decree or judgment is not recognized as valid in this state, unless they subsequently participate in a marriage ceremony purporting to marry each to the other, or subsequently live together as man and wife;

(2) an individual who, following an invalid decree or judgment of divorce or annulment or dissolution of marriage obtained by the decedent, participates in a marriage ceremony with a third individual; or

(3) an individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights against the decedent.

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Annotations

Pursuant to subsection (b)(3) of this section, a person is not a surviving spouse only if the order includes language purporting to terminate all marital property rights against the decedent. In re Estate of Pfeiffer, 265 Neb. 498, 658 N.W.2d 14 (2003).

Prior to the amendment of section 42-372 to provide that the decree is final upon the death of one of the parties to the dissolution, if one of the parties to a decree of dissolution of marriage died during the 6-month period before which the decree is final under section 42-372, then the dissolution decree was nonoperative and the other party was a surviving spouse under the Nebraska Probate Code. In re Estate of Watson, 217 Neb. 305, 348 N.W.2d 856 (1984).

Nebraska Probate Code did not govern definition of "lawful spouse" for purposes of federal statute governing servicemen's group life insurance policy. Under federal statute legal status of alleged spouse must be determined at a particular point in time, while section of probate code defining "surviving spouse" does not define status at time of a spouse's death, but instead limits rights of one lawfully married to decedent to share in decedent's estate after his death. Prudential Ins. Co. of America v. Dulek, 504 F.Supp. 1015 (D. Neb. 1980).