In re Estate of Rose

Citation730 N.W.2d 391,273 Neb. 490
Decision Date26 April 2007
Docket NumberNo. S-06-078.,S-06-078.
PartiesIn re Estate of Gerald V. ROSE, deceased. Russell A. Rose, Personal Representative of the Estate of Gerald V. Rose, deceased, appellant, v. Marjorie Jane Hetrick-Rose, appellee.
CourtNebraska Supreme Court
730 N.W.2d 391
273 Neb. 490
In re Estate of Gerald V. ROSE, deceased.
Russell A. Rose, Personal Representative of the Estate of Gerald V. Rose, deceased, appellant,
v.
Marjorie Jane Hetrick-Rose, appellee.
No. S-06-078.
Supreme Court of Nebraska.
April 26, 2007.

[730 N.W.2d 392]

Wayne E. Boyd, of Boyd Law Office, P.C., South Sioux City, for appellant.

Robert W. Green, P.L.C., for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.


NATURE OF CASE

The fundamental issue before the county court for Dakota County in this probate

730 N.W.2d 393

case was the determination of the size of the augmented estate of Gerald V. Rose which would serve as

273 Neb. 491

the basis for an award of the statutory elective share to his widow, Marjorie Jane Hetrick-Rose. On December 19, 2005, the county court established a family allowance to Marjorie which reduced the size of the augmented estate and determined that two annuity contracts should be included in the augmented estate for purposes of calculating Marjorie's statutory elective share. The county court retained jurisdiction to determine the size of the augmented estate. Russell A. Rose, personal representative of the estate of Gerald V. Rose (the Estate), appeals the county court's ruling regarding the family allowance and the treatment of the two annuities. We dismiss this appeal for lack of jurisdiction.

STATEMENT OF FACTS

Gerald and Marjorie were married on March 14, 1998. Gerald died on March 9, 2005. Gerald was survived by Marjorie and by his six children. Prior to Gerald's death, he and Marjorie lived in a house that Gerald owned prior to their marriage. Gerald had sold the house but retained a life estate at the time of their marriage. Shortly after Gerald's death, Marjorie was evicted from the house and she moved to another home. Prior to Gerald and Marjorie's marriage, Gerald entered into an agreement to sell a farm. The sale was not completed until shortly after their wedding, and Marjorie signed the deed transferring title of the farm. Gerald used part of the proceeds from the sale of the farm to purchase two annuity contracts. The first was purchased April 3, 1998, in the amount of $45,000, and the second was purchased July 11, 2000, in the amount of $51,811.51. On the date of Gerald's death, the annuity contracts were worth $62,023.67 and $66,044.81. The contracts named Gerald's six children as equal primary beneficiaries. They were not designated as irrevocable beneficiaries, and Marjorie was not named as a beneficiary. Each of the contracts provided that after completion of 1 contract year, up to 10 percent of the annuity purchase value could be withdrawn penalty free in any 12-month period. The remaining amount could be withdrawn subject to a penalty that decreased from 6 percent of the annuity purchase value in the first year to 0 percent in the eighth year and thereafter.

On June 16, 2005, Marjorie filed in county court a petition under Neb.Rev.Stat. § 30-2317 (Reissue 1995) electing to take

273 Neb. 492

her elective share of 50 percent of the augmented estate and an application under Neb.Rev.Stat. §§ 30-2324 and 30-2325 (Reissue 1995) requesting a family allowance as the surviving spouse. The county court held a hearing on November 17, and on December 19, it entered an order relating to Marjorie's requests for the elective share and the family allowance.

In the December 19, 2005, order, the court noted that pursuant to § 30-2325, a personal representative could, without court approval, pay a family allowance "in a lump sum not exceeding nine thousand dollars [$9,000] or periodic installments not exceeding seven hundred fifty dollars [$750] per month for one year." The court determined that $750 per month was a fair amount to pay Marjorie as a family allowance because the amount "would help to meet [her] housing needs." The court ordered the personal representative to pay Marjorie $750 per month during the period of administration but ordered that the allowance could not continue for longer than 1 year. In its December 19 order, the court also found that the annuity contracts were property that fell within the meaning of Neb.Rev.Stat. § 30-2314(a)(1)(i) and (ii) (Reissue 1995) and that therefore the two annuity contracts should be part of the

730 N.W.2d 394

augmented estate for purposes of determining Marjorie's statutory elective share.

In the December 19, 2005, order, the court also stated that it would "retain jurisdiction to make a further determination of the augmented estate." The Estate appeals the December 19 order.

ASSIGNMENTS OF ERROR

The Estate asserts that the county court erred in (1) establishing a family allowance to Marjorie in the amount of $750 per month and (2) finding that the two annuity contracts should be included in the augmented estate...

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