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Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

IN RE ESTATE OF PSOTA

Cite as 297 Neb. 570

In re Estate of Eldon R. Psota, deceased.

Sharlene Psota, appellant, v. James Psota and

Janice Brown, Copersonal Representatives

of the Estate of Eldon R. Psota, 

deceased, appellees.

___ N.W.2d ___

Filed August 25, 2017. No. S-16-873.

1. Decedents’ Estates: Appeal and Error. An appellate court reviews 

probate cases for error appearing on the record made in the county court.

2. Decedents’ Estates: Judgments: Appeal and Error. When reviewing 

questions of law in a probate matter, an appellate court reaches a conclusion independent of the determination reached by the court below.

3. Decedents’ Estates: Contracts: Waiver. Neb. Rev. Stat. § 30-2316 

(Reissue 2016) applies when determining whether a surviving spouse 

has waived rights to the property or estate of a decedent spouse by signing a written contract, agreement, or waiver.

4. Statutes: Legislature: Presumptions. In enacting a statute, the 

Legislature must be presumed to have knowledge of all previous legislation upon the subject.

5. Statutes: Legislature: Presumptions: Intent. The Legislature is presumed to know the language used in a statute, and if a subsequent act on 

the same or similar subject uses different terms in the same connection, 

the court must presume that a change in the law was intended.

6. Statutes. It is not within the province of a court to read a meaning into 

a statute that is not warranted by the language; neither is it within the 

province of a court to read anything plain, direct, or unambiguous out of 

a statute.

7. Decedents’ Estates: Waiver: Proof. Under the plain language of Neb. 

Rev. Stat. § 30-2316(b) (Reissue 2016), a surviving spouse must satisfy 

the requirements of both subsections (b)(1) and (b)(2) in order to prove 

a waiver signed by the surviving spouse is unenforceable.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/13/2017 12:10 AM CDT
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Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

IN RE ESTATE OF PSOTA

Cite as 297 Neb. 570

Appeal from the County Court for Valley County: Alan L. 

Brodbeck, Judge. Affirmed.

Michael J. O’Bradovich, P.C., for appellant.

Mark L. Eurek, of Law Office of Mark L. Eurek, P.C., for 

appellee Janice Brown.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, 

Kelch, and Funke, JJ.

Stacy, J.

Sharlene Psota filed an application to be treated as an omitted spouse under a section of the Nebraska Probate Code1

after her husband Eldon R. Psota made no provision for her 

in his will. The copersonal representatives of Eldon’s estate 

resisted the application, arguing Sharlene waived all her rights 

to Eldon’s estate in a prenuptial agreement. The probate court 

denied the application, and Sharlene filed this appeal. We 

affirm the decision of the probate court.

FACTS

Sharlene and Eldon married on September 24, 2011. It was 

a second marriage for both parties, and each had children from 

a prior marriage. Approximately 1 week before their wedding, Eldon suggested a prenuptial agreement, and Sharlene 

agreed. Six days before the wedding, they met with an attorney 

selected by Eldon. A few days later, they met with the attorney again and reviewed a draft prenuptial agreement. Sharlene 

requested revisions to the agreement, which the attorney incorporated. They returned to the attorney’s office the day before 

their wedding and signed the final agreement.

As pertinent to the issues on appeal, the agreement recited 

that “both parties are desirous of completely and absolutely 

disclaiming any right of inheritance or any interest of any 

1 See Neb. Rev. Stat. § 30-2320 (Reissue 2016).
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IN RE ESTATE OF PSOTA

Cite as 297 Neb. 570

nature whatsoever in and to the property of the other party 

that was accumulated prior to their forthcoming marriage.” 

It further provided that “each party has made frank and full 

disclosure each to the other of all property of every nature 

whatsoever that they now hold.” The agreement provided 

that each party “absolutely and completely” disclaimed “any 

interest of any nature whatsoever” that he or she had in the 

real and personal property of the other and acknowledged that 

“full and complete disclosure” had been made of all property 

owned by the other.

The agreement recited that attached as “Exhibit ‘A’” was 

Eldon’s “statement of the property” and his “most recent 

income tax return,” and attached as “Exhibit ‘B’” was 

Sharlene’s statement of property and most recent income 

tax return. Both exhibits were attached to the agreement and 

contained lists of each party’s real property, without any valuations. Neither exhibit listed any personal property, and no 

income tax returns were attached. With respect to the property 

disclosures, the agreement provided: “Each party understands 

that said [property] statements are made in general terms, and 

that each party does agree and acknowledge that [he or she 

does], in fact, have personal knowledge of the full extent of 

the other’s property, and that said [property lists] are only 

representative in nature.” The agreement further stated that 

each party

shall have the right to dispose of [his or her] entire estate 

and each does waive any and all interest of any nature 

whatsoever upon the estate of the other, and each specifically waives herein a spouse’s elective share, homestead allowance, exempt allowance, family allowance, 

augmented estate, and all testate and intestate rights.

Eldon died in August 2013. His will, executed approximately 8 years before his marriage to Sharlene, did not leave 

anything to her. The inventory of Eldon’s estate contained 

approximately $10 million in assets, the bulk of which related 

to the real property he owned.
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IN RE ESTATE OF PSOTA

Cite as 297 Neb. 570

In November 2015, Sharlene filed an application to be 

treated as an omitted spouse under Neb. Rev. Stat. § 30-2320 

(Reissue 2016). That statute provides that if a testator fails to 

provide by will for a surviving spouse who married the testator 

after the execution of the will, the omitted spouse shall receive 

the same share of the estate he or she would have received if 

the decedent had left no will.2 The statute also provides that the 

rights of the omitted spouse can be “waived pursuant to section 

30-2316.”3 Neb. Rev. Stat. § 30-2316 (Reissue 2016) allows a 

surviving spouse to waive the right of election “by a written 

contract, agreement, or waiver signed by the surviving spouse” 

either before or after the marriage.

Eldon’s estate resisted Sharlene’s application, arguing she 

waived her rights to Eldon’s estate in the prenuptial agreement. 

After holding an evidentiary hearing at which Sharlene testified and the prenuptial agreement was admitted into evidence, 

the county court found the prenuptial agreement was valid 

under § 30-2316. It held that Sharlene had waived the right to 

take as an omitted spouse, and denied her application for share 

of an omitted spouse. Sharlene filed this timely appeal, which 

we moved to our docket.4

ASSIGNMENTS OF ERROR

Sharlene assigns, restated and consolidated, that the trial 

court erred in (1) finding she was aware of the value of Eldon’s 

real property, when it was not valued in the prenuptial agreement; (2) finding she should have known the value of Eldon’s 

estate when the prenuptial did not list his personal property or 

contain his tax returns; and (3) finding the prenuptial agreement was enforceable when it failed to meet several statutory 

requirements on its face.

2 Id.

3 § 30-2320(a).

4 Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
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IN RE ESTATE OF PSOTA

Cite as 297 Neb. 570

STANDARD OF REVIEW

[1] An appellate court reviews probate cases for error appearing on the record made in the county court.5

[2] When reviewing questions of law in a probate matter, an 

appellate court reaches a conclusion independent of the determination reached by the court below.6

ANALYSIS

Statutory Background

The probate court concluded the prenuptial agreement was 

an enforceable waiver of Sharlene’s statutory right to receive a 

share of Eldon’s estate as an omitted spouse. Sharlene argues 

the waiver was unenforceable under § 30-2316(b) for a variety 

of reasons. We begin our analysis with a review of the governing statute.

[3] Section 30-2316 applies when determining whether a 

surviving spouse has waived rights to the property or estate of 

a decedent spouse by signing a written contract, agreement, or 

waiver. Under that statute:

(b) A surviving spouse’s waiver is not enforceable if 

the surviving spouse proves that:

(1) he or she did not execute the waiver voluntarily;

(2) the waiver was unconscionable when it was executed and, before execution of the waiver, he or she:

(i) was not provided a fair and reasonable disclosure of 

the property or financial obligations of the decedent;

(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial 

obligations of the decedent beyond the disclosure provided; and

(iii) did not have, or reasonably could not have had, an 

adequate knowledge of the property or financial obligations of the decedent.

5 In re Estate of Pluhacek, 296 Neb. 528, 894 N.W.2d 325 (2017).

6 Id.
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Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

IN RE ESTATE OF PSOTA

Cite as 297 Neb. 570

A similar statute, Neb. Rev. Stat. § 42-1006 (Reissue 2016), 

governs the enforceability of premarital agreements generally, 

and most often is applied in proceedings for the dissolution of 

marriage.7 Section 42-1006 provides in pertinent part:

(1) A premarital agreement is not enforceable if the 

party against whom enforcement is sought proves that:

(a) That party did not execute the agreement voluntarily; or

(b) The agreement was unconscionable when it was 

executed and, before execution of the agreement, that 

party:

(i) Was not provided a fair and reasonable disclosure 

of the property or financial obligations of the other party;

(ii) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial 

obligations of the other party beyond the disclosure provided; and

(iii) Did not have, or reasonably could not have had, an 

adequate knowledge of the property or financial obligations of the other party.

Because the language and purpose of the two statutes is similar, case law interpreting and applying § 42-1006(1) will generally be instructive when interpreting and applying § 30-2316. 

However, there is one notable difference between the two 

statutes: § 42-1006(1) contains the connector “or” between 

subsections (a) and (b), but § 30-2316(b) has no connector 

between subsections (1) and (2). Eldon’s estate argues that this 

statutory difference is significant and impacts Sharlene’s burden of proof in this case. We agree.

In Mamot v. Mamot,

8

 we considered the Legislature’s inclusion of the term “or” in § 42-1006(1)(a), and we held that 

7 See, Mamot v. Mamot, 283 Neb. 659, 813 N.W.2d 440 (2012); Edwards v. 

Edwards, 16 Neb. App. 297, 744 N.W.2d 243 (2008).

8 Mamot v. Mamot, supra note 7.
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IN RE ESTATE OF PSOTA

Cite as 297 Neb. 570

those seeking to prove a premarital agreement is unenforceable have the burden of proving “either that [he or] she 

did not voluntarily execute the premarital agreement or that 

the premarital agreement was unconscionable when it was 

executed.”9

The present case requires us to determine whether the 

absence of the term “or” between § 30-2316(b)(1) and (2) 

is significant as it regards the burden of proof. Restated, the 

question is whether a surviving spouse must satisfy both subsections (b)(1) and (b)(2) of § 30-2316 to prove that a waiver 

signed by the surviving spouse is unenforceable.

[4,5] We note that §§ 30-2316(b) and 42-1006(1) were 

enacted by the Legislature in the same bill.10 In enacting a 

statute, the Legislature must be presumed to have knowledge 

of all previous legislation upon the subject.11 The Legislature 

is also presumed to know the language used in a statute, and if 

a subsequent act on the same or similar subject uses different 

terms in the same connection, the court must presume that a 

change in the law was intended.12

We presume the Legislature, having enacted §§ 30-2316 

and 42-1006 as part of the same bill, was fully cognizant of 

the language used, and easily could have included the term 

“or” in both statutes when setting forth the evidence required 

to prove an agreement is unenforceable. It instead included 

“or” between subsections (1)(a) and (b) in § 42-1006, but 

omitted any connector between subsections (b)(1) and (2) in 

§ 30-2316.

[6] During oral argument, Sharlene urged this court to read 

the term “or” into § 30-2316(b)(1) and apply the same burden 

of proof under both statutes. But it is not within the province 

9 Id. at 664-65, 813 N.W.2d at 446 (emphasis in original).

10 See 1994 Neb. Laws, L.B. 202.

11 Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012).

12 Id.
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IN RE ESTATE OF PSOTA

Cite as 297 Neb. 570

of a court to read a meaning into a statute that is not warranted by the language; neither is it within the province of a 

court to read anything plain, direct, or unambiguous out of 

a statute.13

[7] We decline the invitation to read into § 30-2316(b) language which the Legislature plainly omitted. We instead hold 

that under the plain language of § 30-2316(b), a surviving 

spouse must satisfy the requirements of both subsections (b)(1) 

and (b)(2) in order to prove a waiver signed by the surviving 

spouse is unenforceable. We next consider whether the probate court erred in finding Sharlene did not meet this burden 

of proof.

Voluntariness of Execution

Under § 30-2316(b)(1), Sharlene had the burden to prove 

she “did not execute the waiver voluntarily.” The probate 

court implicitly found she failed to meet this burden and 

concluded she “knowingly and voluntarily entered” into the 

waiver. Sharlene does not assign error to this finding, and her 

brief concedes that she “does not deny that she went to the 

office of the attorney and signed the Agreement voluntarily.”14

However, Sharlene’s briefing urges us to adopt a definition of 

“voluntarily” which includes consideration of factors beyond 

the execution of the agreement.

We have never addressed what “voluntarily” means in the 

context of § 30-2316(b)(1). The statute does not define the 

term. Black’s Law Dictionary defines “voluntarily” as “[i]ntentionally; without coercion.”15 In Edwards v. Edwards,

16 the 

Nebraska Court of Appeals considered the meaning of “voluntarily” in the context of a dissolution case where the wife 

13 State v. Warriner, 267 Neb. 424, 675 N.W.2d 112 (2004); State v. Gartner, 

263 Neb. 153, 638 N.W.2d 849 (2002).

14 Brief for appellant at 13.

15 Black’s Law Dictionary 1806 (10th ed. 2014).

16 Edwards v. Edwards, supra note 7.
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IN RE ESTATE OF PSOTA

Cite as 297 Neb. 570

challenged the enforceability of a premarital agreement under 

§ 42-1006(1). That court found instructive a five-factor test 

developed by a California court under the Uniform Premarital 

Agreement Act. We considered the same five-factor test in 

Mamot v. Mamot,

17 observing that “[t]he California court identified the following factors that a court might consider”:

(1) “coercion that may arise from the proximity of execution of the agreement to the wedding, or from surprise 

in the presentation of the agreement”;

(2) “the presence of absence of independent counsel or 

of an opportunity to consult independent counsel”;

(3) “inequality of bargaining power—in some cases 

indicated by the relative age and sophistication of the 

parties”;

(4) “whether there was full disclosure of assets”; and

(5) the parties’ understanding of the “rights being 

waived under the agreement or at least their awareness of 

the intent of the agreement.”18

Here, Sharlene concedes she “went to the office of the 

Attorney and signed the agreement voluntarily.”19 Her brief 

asserts, however, that “voluntariness” under § 30-2316(b) 

requires “more than intentionally affixing one’s name to a 

document”20 and instead involves an application of all five 

Edwards/Mamot factors. Essentially, she invites this court 

to apply the Edwards/Mamot analysis to cases governed by 

§ 30-2316. We decline this invitation for two reasons.

First, we note the Edwards/Mamot factors examine not only 

the procedural aspects of executing the agreement, but also 

17 Mamot v. Mamot, supra note 7.

18 Id. at 665-66, 813 N.W.2d at 447, quoting In re Marriage of Bonds, 24 

Cal. 4th 1, 5 P.3d 815, 99 Cal. Rptr. 2d 252 (2000) (superseded by statute 

as stated in In re Marriage of Cadwell-Faso and Faso, 191 Cal. App. 4th 

945, 119 Cal. Rptr. 3d 818 (2011)).

19 Brief for appellant at 13.

20 Id.
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IN RE ESTATE OF PSOTA

Cite as 297 Neb. 570

the substantive terms of the agreement regarding the full disclosure of assets. In that respect, the Edwards/Mamot factors 

tend to combine the separate elements of proof required under 

§ 30-2316(b)(1) and (2), and frustrate judicial determination of 

whether both statutory requirements have been proved.

More directly, Sharlene does not explain in her brief to this 

court how application of the Edwards/Mamot factors would 

show the probate court erred in finding that her waiver was 

voluntarily executed. She makes no attempt to explain how the 

evidence relates to the individual factors or suggest any error 

in the probate court’s reasoning or analysis.

On the record before us, Sharlene has not established that 

the probate court erred in finding she executed the waiver 

voluntarily. Having failed to prove she did not execute the 

waiver voluntarily under § 30-2316(b)(1), she cannot meet 

her burden of proving the waiver was unenforceable. For this 

reason, we need not reach her arguments as to the unconscionability of the waiver under § 30-2316(b)(2), as an appellate court need not engage in an analysis not necessary to 

resolve the appeal.21

CONCLUSION

Finding no error in the probate court’s conclusion that 

Sharlene executed the waiver voluntarily, we affirm that court’s 

decision denying her application to take as an omitted spouse.

Affirmed.

21 See In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 469 

(2017).