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CHAMBERS v. BRINGENBERG

Cite as 309 Neb. 888

James Chambers, Personal Representative of the 

Estate of David L. Chambers, appellee, 

v. Angie Bringenberg, appellant.

___ N.W.2d ___

Filed August 6, 2021. No. S-20-593.

1. Summary Judgment: Appeal and Error. Summary judgment is proper 

when the pleadings and evidence admitted at the hearing disclose no 

genuine issue regarding any material fact or the ultimate inferences that 

may be drawn from those facts and that the moving party is entitled 

to judgment as a matter of law. In reviewing a summary judgment, an 

appellate court views the evidence in the light most favorable to the 

party against whom the judgment is granted and gives such party the 

benefit of all reasonable inferences deducible from the evidence.

2. Statutes: Appeal and Error. To the extent an appeal calls for statutory 

interpretation or presents questions of law, an appellate court must reach 

an independent conclusion irrespective of the determination made by the 

court below.

3. Statutes: Intent. When interpreting a statute, the starting point and 

focus of the inquiry is the meaning of the statutory language, understood 

in context.

4. Statutes. It is not within the province of the courts to read a meaning 

into a statute that is not there or to read anything direct and plain out of 

a statute.

5. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.

6. Decedents’ Estates: Deeds: Homesteads. Transfer-on-death deeds 

are not subject to the requirements of Neb. Rev. Stat. § 40-104 

(Reissue 2016).

7. Decedents’ Estates: Deeds. The Nebraska Uniform Real Property 

Transfer on Death Act allows, through a transfer-on-death deed, for the 

nonprobate transfer of real estate after the death of the transferor.

Nebraska Supreme Court Online Library

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

09/24/2021 08:11 AM CDT
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8. Decedents’ Estates: Deeds: Wills. Under transfer-on-death deeds, property changes hands after death through the nonprobate means of assetspecific will substitutes, sometimes called nonprobate wills.

9. Decedents’ Estates: Wills: Property. Nonprobate wills are designed 

to provide an avenue for transferring property after death that is less 

expensive and time consuming than probate court proceedings.

10. Decedents’ Estates: Deeds. A transfer of real property through a 

transfer-on-death deed is effective at the transferor’s death and at all 

times until then is fully revocable.

11. Decedents’ Estates: Deeds: Words and Phrases. A “designated bene

ficiary” of a transfer-on-death deed is the person designated to receive 

property in a transfer-on-death deed, while the “beneficiary” is a person 

who actually receives property under a transfer-on-death deed.

12. Decedents’ Estates: Deeds: Taxes. The property transferred after death 

via a transfer-on-death deed is subject to inheritance taxes.

13. Decedents’ Estates: Deeds. During a transferor’s life, a transfer-ondeath deed does not affect any interest of the transferor, transferee, or 

third parties.

14. Decedents’ Estates: Deeds: Intent. The provision of Neb. Rev. Stat. 

§ 76-3407 (Reissue 2018) that a transfer-on-death deed is nontestamentary was intended to clarify that the transfer-on-death deed does not 

have to be executed with the formalities of a will and does not need to 

be probated.

15. Decedents’ Estates: Deeds. Neb. Rev. Stat. § 76-3407 (Reissue 2018) 

does not change the fundamental feature of a transfer-on-death deed that 

it does not operate until the transferor’s death.

16. ____: ____. A transfer-on-death deed is not an inter vivos grant.

17. Decedents’ Estates: Deeds: Statutes. A transfer-on-death deed is a term 

of art that has no common-law background; it is authorized by statute.

18. Decedents’ Estates: Deeds. Transfer-on-death deeds are inherently quitclaim deeds, with the important distinction that they take effect only 

upon the transferor’s death and pass only whatever interest the decedent 

had in the property at death.

19. ____: ____. On the death of the transferor, the beneficiary to the property subject to the transfer-on-death deed takes the property subject 

to all conveyances, encumbrances, assignments, contracts, mortgages, 

liens, and other interests to which the property is subject at the transferor’s death.

20. Decedents’ Estates: Liability. If other assets of the transferor’s estate 

are insufficient to pay all claims against it, as well as statutory allowances to the transferor’s surviving spouse and children, and the expenses 

of administration, then the beneficiary is subject to personal liability 
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Cite as 309 Neb. 888

to the extent needed to pay all claims against the transferor’s estate, 

statutory allowances to the transferor’s surviving spouse and children, 

and the expenses of administration.

21. Decedents’ Estates: Deeds. Any property subject to a transfer-on-death 

deed is includable in the calculation of the augmented estate under Neb. 

Rev. Stat. § 30-2314 (Reissue 2016).

22. Decedents’ Estates: Deeds: Liability. A beneficiary who receives property through a transfer-on-death deed is liable to account to the personal 

representative of the transferor’s estate for a proportionate share of the 

fair market value of the equity in the interest the beneficiary received to 

the extent necessary to discharge the claims and allowances remaining 

unpaid after application of the transferor’s estate.

23. Decedents’ Estates: Accounting: Time. A proceeding to account must 

be commenced within 1 year after the death of the transferor and may 

not be commenced unless the personal representative has received a 

written demand by the surviving spouse, a creditor, a child, or a person 

acting for a child of the transferor to do so.

24. Decedents’ Estates: Deeds: Time. The transfer-on-death deed must be 

recorded within 30 days after being executed, but this recording creates 

no ownership rights or rights of priority against subsequent creditors 

or other claimants to the property that is the subject of the transfer-ondeath deed.

25. Homesteads: Legislature: Intent. The purpose of the Legislature in 

enacting the homestead statutes was to protect the debtor and the 

debtor’s family residing in a home from the forced sale of the home on 

execution or attachment.

26. Homesteads. The requisite occupancy is the most important factor in 

determining whether property is the homestead, because this is the test 

established by the homestead statutes.

27. ____. A homestead is not dependent upon ownership, and it does not 

create ownership interests.

28. ____. Any interest in real estate, either legal or equitable, that gives a 

present right of occupancy or possession, followed by exclusive occupancy, is sufficient to support a homestead right therein.

29. ____. There are exceptions to the requirement of actual occupancy to 

establish a homestead only where either (1) a property occupied as a 

homestead has been temporarily vacated without abandonment, and 

with a bona fide and subsisting intention to return, or (2) the claimant 

with the claimant’s family have the bona fide present intention of making the property the homestead, some intervening obstruction prevents 

immediate actual possession, the claimant clearly manifests the intention 

of making the property the homestead to put others on notice, and the 

family occupies the land as circumstances reasonably permit.
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30. Homesteads: Sales: Time. While the amount of the proceeds from the 

sale of a homestead are protected for a period of 6 months from a sale 

executed and acknowledged by both spouses, and may be reinvested into 

a new homestead, real estate purchased with the sale of a homestead 

does not become the new homestead unless the requisite occupancy, 

actual or constructive, is present.

31. Homesteads. Because the object of the homestead legislation is to 

conserve the family by keeping a roof over it, the homestead, at least 

so long as the family continues to reside there and to the extent it cannot be separated without depriving the family of its actual home, is 

something more than the present worth of the exemption the homestead 

statutes allow.

32. ____. Neb. Rev. Stat. § 40-104 (Reissue 2016) was designed to accomplish the goal of keeping a roof over the family by preventing the possibility of the indivisible family home being unilaterally conveyed or 

encumbered by fraud, thereby interfering with the family’s rights to 

occupancy.

33. Homesteads: Deeds. An inter vivos deed conveying nonhomestead property is valid between the parties despite the lack of proper 

acknowledgment.

34. Homesteads. The conveyance of the family homestead away from the 

family during the conveyor spouse’s lifetime without both spouses’ 

execution and acknowledgment is invalid.

35. ____. The statutory provision requiring that the conveyance of a homestead be executed by both husband and wife applies to a homestead 

in which both have a homestead interest and cannot be relied on by a 

spouse who lacks the requisite occupancy to invalidate the occupying 

spouse’s unilateral encumbrance or conveyance of real estate.

36. Homesteads: Wills: Title. A spouse’s unilateral devise of that spouse’s 

title to the homestead real estate via a last will and testament is valid, 

albeit subject to the homestead allowance and the surviving spouse’s 

statutory life estate, when that was in effect.

37. Homesteads. Homestead statutes do not prohibit testamentary disposition of the homestead premises by the owner, although sometimes the 

surviving spouse and children are given certain rights in the land.

38. Homesteads: Title. A spouse with title to property, in whole or in part, 

does not, by permitting the property to be occupied as the family homestead, give up the right that spouse would otherwise have to devise that 

spouse’s ownership interest.

39. Decedents’ Estates: Deeds: Homesteads. What occurs upon a transferor’s death to property that is the subject of a transfer-on-death deed is 

not a conveyance or an encumbrance, but a devise; a transfer-on-death 
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deed thus does not fall under the plain language of Neb. Rev. Stat. 

§ 40-104 (Reissue 2016).

40. Statutes. When reading a statute, what it does not say is often as important as what it does say.

41. ____. Silence can be a meaningful indicator of statutory meaning.

42. Statutes: Legislature: Presumptions. In determining the meaning of 

a statute, the applicable rule is that when the Legislature enacts a law 

affecting an area which is already the subject of other statutes, it is presumed that it did so with full knowledge of the preexisting legislation.

43. Decedents’ Estates: Deeds: Homesteads: Legislature: Intent. It is 

presumed that the Legislature knowingly did not provide that both 

spouses must, under Neb. Rev. Stat. § 40-104 (Reissue 2016), execute 

and acknowledge a transfer-on-death deed pertaining to homestead property in order for it to be valid.

44. Decedents’ Estates: Deeds: Homesteads: Wills: Intent. Neb. Rev. 

Stat. § 40-104 (Reissue 2016) was never meant to apply to a transferon-death deed, a term of art for a nonprobate will authorized by the 

Nebraska Uniform Real Property Transfer on Death Act, which has no 

common-law background and did not exist when § 40-104 was adopted.

Appeal from the District Court for Lancaster County: Darla 

S. Ideus, Judge. Reversed and remanded with directions.

Brian S. Koerwitz, of Endacott, Peetz, Timmer & Koerwitz, 

P.C., L.L.O., for appellant.

J.L. Spray, Christina L. Usher, and Andrew R. Spader, of 

Mattson Ricketts Law Firm, for appellee.

Miller-Lerman, Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

The district court on summary judgment invalidated a 

transfer-on-death (TOD) deed executed by the wife before her 

death naming her daughter as the designated beneficiary to her 

interest in a house titled solely in the wife’s name. The court 

reasoned that the TOD deed was void because the husband 

did not execute and acknowledge the TOD deed, as set forth 

in a homestead statute, Neb. Rev. Stat. § 40-104 (Reissue 
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2016). Section 40-104 provides that the “homestead of a married person” cannot be “conveyed or encumbered unless the 

instrument by which it is conveyed or encumbered is executed 

and acknowledged by both spouses.” The court quieted title 

of the house in the wife’s estate, thereby requiring it to go 

through probate rather than allowing the wife’s interest therein 

to be transferred outside of probate pursuant to the Nebraska 

Uniform Real Property Transfer on Death Act (TODA). 1 It also 

dismissed the daughter’s counterclaim for slander of title. The 

daughter appeals.

BACKGROUND

David L. Chambers commenced the underlying action with 

a complaint to quiet title against Angie Bringenberg, in which 

he also asked for injunctive relief. During the course of the 

proceedings in district court, David died and his action was 

continued on his estate’s behalf by his son, James Chambers, as 

the personal representative. The subject real property is a house 

in Village Meadows (Meadows house), in Lincoln, Nebraska. 

David was the surviving spouse of Eleanor Chambers, who 

died on March 3, 2018. David and Eleanor married in 1995. 

Bringenberg is Eleanor’s daughter. David was her stepfather. 

Eleanor was James’ stepmother.

Premarital Agreement

At the time of their marriage, David and Eleanor entered 

into a premarital agreement that was drafted by David. The 

agreement made reference to David’s separate property consisting of a house and 80 acres and Eleanor’s separate property as 

76 acres in “Fillmore Co.” The premarital agreement, however, 

is ultimately not relevant to our disposition of this appeal, and 

we need not set it forth here in further detail.

Properties

In 2003, David and Eleanor, as husband and wife, jointly 

purchased a house on Wildfire Circle in Lincoln (Wildfire 

1 Neb. Rev. Stat. §§ 76-3401 to 76-3423 (Reissue 2018).
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house). They also jointly owned a house in Arizona during 

their marriage.

In early 2017, David’s health deteriorated. He moved into 

a skilled nursing care facility and later into an assisted living facility.

Sometime after 2017, the Arizona property was sold. Up 

until his death, David owned a house solely in his own name, 

which was located on a farm on Adams Street in Lincoln (the 

farmhouse). The farmhouse and surrounding land appears to 

be the same property described in the premarital agreement as 

David’s sole property.

At some point, Eleanor inherited the land in Fillmore 

County, Nebraska, referred to in the premarital agreement as 

“Fillmore Co.,” which she had held a life estate in. That land 

was subsequently sold by Eleanor for a substantial sum, apparently in 2012.

In June 2017, Eleanor purchased the Meadows house solely 

in her name. Eleanor resided in the Meadows house thereafter 

until her death. David never resided in the Meadows house and 

stated he never intended to do so.

Shortly after Eleanor acquired the Meadows house, David 

and Eleanor jointly executed a sale, in August 2017, of the 

Wildfire house.

TOD Deed

Prior to a scheduled surgery, on February 8, 2018, Eleanor 

recorded a TOD deed for the Meadows house, naming 

Bringenberg as the designated beneficiary. David did not execute or acknowledge the TOD deed. Eleanor died on March 3. 

On March 13, Bringenberg recorded Eleanor’s death certificate 

and transferred the Meadows house to her name.

Disputed Allegations of 

David’s Complaint

David alleged in his complaint to quiet title and for injunctive relief that Eleanor told him the Meadows house was 
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replacing the Wildfire house as the marital home and would be 

titled in joint tenancy with right of survivorship. Bringenberg 

denied that allegation. David alleged in his complaint that the 

Meadows house was purchased with marital funds; Bringenberg 

also denied that allegation.

David generally alleged that he was the rightful owner of the 

Meadows house and that a cloud had been cast upon the title. 

David asserted he was the rightful owner of the Meadows house 

due to (1) the fact that marital funds were used for its purchase, 

(2) David’s belief the property was held in joint tenancy, and 

(3) the invalidity of the TOD deed because “Nebraska deeds 

conveying an interest in real property held by a married person 

must be executed by both spouses.”

David sought a judgment (1) quieting title to the Meadows 

house in his name in fee simple absolute as against Bringenberg 

and (2) enjoining Bringenberg from forever asserting any 

claims of interest in the real estate or any portion thereof. 

David also asked for attorney fees and any other relief the 

court found to be just and equitable.

Bringenberg’s Answer 

and Counterclaim

Bringenberg generally denied that David was the rightful owner of the Meadows house and alleged that David’s 

complaint failed to state a claim and was barred under the 

doctrines of waiver, abandonment, estoppel, res judicata, election of remedies, and unclean hands. Bringenberg alleged that 

the proper action to assert David’s claim was through filing a 

petition for an elective share for the augmented estate, which 

had been filed in the matter of the “Estate of Eleanor A. 

Chambers, in the County Court of Lancaster County, Case No. 

PR18-319.” Further, Bringenberg alleged David’s claim against 

the Meadows house violated the prenuptial agreement.

Bringenberg sought attorney fees for what she alleged was 

a frivolous lawsuit. She counterclaimed for slander of her title 

in relation to David’s filing with the county register of deeds 
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a notice of lis pendens against the Meadows house, which 

cloud on her title allegedly was filed in reckless or wanton disregard of her rights and with no legal justification. Bringenberg 

sought damages sustained as a result of the complaint, an order 

that any notice be stricken from the property records of the 

register of deeds, prejudgment and postjudgment interest as 

allowed by law, attorney fees and costs, and such other relief 

as the court deemed proper.

David’s Motion for Partial Summary 

Judgment and Hearing

David moved for “partial” summary judgment on the 

grounds that there was no genuine issue that the TOD deed 

was invalid, because David did not execute or acknowledge 

the deed; therefore, the deed did not effectuate a transfer of 

title to Bringenberg upon Eleanor’s death. David asserted that 

Nebraska law required deeds of married persons to be executed 

and acknowledged by both spouses, especially deeds conveying a homestead interest.

David argued at the hearing that the court was being asked 

to decide the “narrow question whether a [TOD] Deed is subject to the Homestead Rule from Nebraska Revised Statute 

40-104 which requires both spouses sign a deed transferring 

the homestead of a married person.” He stated that the question was whether the TOD deed was “void and therefore title 

should be quieted back to the Estate of Eleanor.” He claimed it 

was undisputed that the Meadows house was Eleanor’s “homestead.” Thus, David did not ask the court to decide on summary 

judgment if he had equitable title in the Meadows house due 

to the fact that marital funds were allegedly used to purchase 

it. David did not challenge the conveyance of the Wildfire 

house, the deed for which both David and Eleanor executed 

and acknowledged.

Bringenberg responded that it was disputed that the Meadows 

house was the homestead for purposes of § 40-104. David 

did not reside there or ever intend to do so, and no children 
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had ever resided there. Bringenberg also argued that TOD 

deeds under the TODA are not subject to the requirements 

of § 40-104, even if the Meadows house was the homestead. 

She noted that nowhere in the TODA and its detailed requirements for effectuating TOD deeds did the Legislature require a 

spouse’s signature when the deed involves jointly owned property or a “homestead.”

This was consistent, Bringenberg argued, with the intent 

of the TODA to allow TOD deeds to function as will substitutes that avoid probate. Under the TODA, any interest by the 

nontransferor spouse in the property remains intact and the 

beneficiary takes the real estate subject to it. The TOD deed 

does not operate as any conveyance or encumbrance until after 

the death of the transferor, at which time the real estate is no 

longer the homestead of “a married person.” Both spouses, 

Bringenberg pointed out, need not execute and acknowledge 

one spouse’s will in order for it to be valid. Thus, likewise, 

both spouses need not execute and acknowledge one spouse’s 

TOD deed.

Bringenberg alternatively asserted that any homestead interest in the Meadows house was waived through the premarital 

agreement, the validity of which David did not challenge in his 

motion for partial summary judgment.

Both parties submitted evidence at the summary judgment 

hearing pertaining to David’s and Eleanor’s residency and 

intentions regarding the ownership of their properties. David 

also submitted evidence pertaining to the source of the funds 

to purchase the Meadows house. The court sustained David’s 

objections to exhibits 11, 16, 17, and 19. Exhibit 11 is an affidavit by Eleanor’s attorney, who had prepared the TOD deed. 

Exhibit 16 was a quitclaim deed executed in November 2014 

for the farmhouse and property from David and Eleanor as 

joint tenants to David as the sole grantee. Exhibit 17 contained 

portions of David’s deposition. Exhibit 19 contains text messages between James and his adult son, David’s grandson, in 

February and March 2018.
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Court’s November 4, 2019, Order Granting 

Partial Summary Judgment

On November 4, 2019, the court issued an order sustaining 

David’s motion for partial summary judgment. The court found 

that the TOD deed is “void” as a matter of law. Accordingly, 

the court found that no ownership interest in the Meadows 

house transferred to Bringenberg upon Eleanor’s death through 

the TOD deed.

In so ruling, the court reasoned that a TOD deed was 

an instrument of conveyance or encumbrance subject to the 

spousal joinder requirement of § 40-104. The court rejected 

Bringenberg’s argument that § 40-104 did not apply because 

the Meadows house was not the marital homestead. The court 

reasoned that it did not need to decide whether the Meadows 

house was David’s homestead, because it was Eleanor’s homestead. Eleanor was a “married person,” and she lived at the 

Meadows house; thus the court surmised, it was “the homestead of a married person” subject to § 40-104. Having found 

that the Meadows house was the homestead of Eleanor, “a married person,” and noting it was undisputed that David did not 

execute and acknowledge the TOD deed, the court relied on the 

proposition stated in our case law that a valid acknowledgment 

must appear on the face of an instrument purporting to convey 

or encumber the homestead of a married person, or the instrument is wholly “void.” 2 The court also presented several reasons why it concluded that David had not waived, through the 

premarital agreement, his homestead interest in the Meadows 

house as Eleanor’s homestead.

2 See, Mutual of Omaha Bank v. Watson, 297 Neb. 479, 900 N.W.2d 545 

(2017), citing Krueger v. Callies, 190 Neb. 376, 208 N.W.2d 685 (1973); 

Martin v. Norris Public Power Dist., 175 Neb. 815, 124 N.W.2d 221 

(1963); Trowbridge v. Bisson, 153 Neb. 389, 44 N.W.2d 810 (1950); 

Storrs v. Bollinger, 111 Neb. 307, 196 N.W. 512 (1923); Wilson v. Wilson, 

85 Neb. 167, 122 N.W. 856 (1909); Whitlock v. Gosson, 35 Neb. 829, 53 

N.W. 980 (1892).
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The court ordered Bringenberg to execute any deeds as 

needed to affirm ownership of the Meadows house back to 

Eleanor’s estate. Thus, the court did not grant David’s request 

to quiet title of the Meadows house solely in his name. It did 

not determine who had an ownership interest in the Meadows 

house. The court ordered that each party shall bear his or her 

own costs and fees.

The court, in its order granting David partial summary 

judgment, did not explicitly rule on David’s request in his 

complaint for an injunction. The court also did not explicitly 

rule on Bringenberg’s counterclaim for slander of title and her 

related request for an order that David’s notice of lis pendens 

be stricken from the records of the register of deeds. Finally, 

the court did not explicitly rule on Bringenberg’s “counterclaim” for damages as a result of David’s allegedly frivolous complaint.

Appeals and Subsequent 

District Court Orders

Counsel for David’s estate filed on June 5, 2020, a suggestion of death and motion to substitute James, the personal representative of the estate, as the party plaintiff.

In relation to two attempts by Bringenberg to perfect 

appeals, dismissed by the Nebraska Court of Appeals for 

lack of appellate jurisdiction, the district court granted James’ 

motion to dismiss Bringenberg’s counterclaim as moot in 

light of the court’s order granting partial summary judgment 

and, later, James’ motion to dismiss all remaining alternative 

theories of recovery in David’s complaint. Within 30 days 

of this last order, at which point there were no longer any 

outstanding claims by either party preventing a judgment as 

defined by Neb. Rev. Stat. § 25-1301 (Cum. Supp. 2018), 

Bringenberg filed another notice of appeal, docketed as the 

present case. We granted Bringenberg’s petition to bypass the 

Court of Appeals.
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ASSIGNMENTS OF ERROR

Bringenberg assigns that the district court erred in (1) finding that the TOD deed was void because it was not signed 

by David; (2) finding that David “had a homestead interest” 

in the Meadows house; (3) finding that Eleanor had a homestead interest in the Meadows house; (4) not finding that any 

claim by David of a homestead interest was waived through 

the premarital agreement; (5) sustaining David’s objection 

to exhibit 11; (6) sustaining David’s objection to exhibit 16, 

portions of exhibit 17, and exhibit 19; (7) “failing to consider that the premarital agreement was recorded, meets the 

requirements of a deed, and effectively operates as a release 

of David’s interest” in the Meadows house; and (8) dismissing 

Bringenberg’s counterclaim.

The first and eighth assignments of error are the only assignments necessary to our disposition of this appeal, and we ultimately do not determine whether the court erred with respect 

to the remaining assignments.

STANDARD OF REVIEW

[1] Summary judgment is proper when the pleadings and 

evidence admitted at the hearing disclose no genuine issue 

regarding any material fact or the ultimate inferences that may 

be drawn from those facts and that the moving party is entitled 

to judgment as a matter of law. 3 In reviewing a summary judgment, an appellate court views the evidence in the light most 

favorable to the party against whom the judgment is granted 

and gives such party the benefit of all reasonable inferences 

deducible from the evidence. 4

[2] To the extent an appeal calls for statutory interpretation 

or presents questions of law, an appellate court must reach 

3 Jordan v. LSF8 Master Participation Trust, 300 Neb. 523, 915 N.W.2d 399 

(2018).

4 Id.
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an independent conclusion irrespective of the determination 

made by the court below. 5

ANALYSIS

[3-6] The question of whether § 40-104 applies to TOD 

deeds is a question of statutory interpretation that we must 

decide as a matter of law independently of the lower court. 6

This is the first occasion this court has had to address the 

meaning of any of the provisions of the TODA. When interpreting a statute, the starting point and focus of the inquiry is 

the meaning of the statutory language, understood in context. 7

It is not within the province of the courts to read a meaning 

into a statute that is not there or to read anything direct and 

plain out of a statute. 8 Statutory language is to be given its 

plain and ordinary meaning, and an appellate court will not 

resort to interpretation to ascertain the meaning of statutory 

words which are plain, direct, and unambiguous. 9 For the reasons that follow, we hold that TOD deeds are not subject to the 

requirements of § 40-104. TOD deeds are transfers effective 

only after the death of the transferor, and they affect no rights 

of any persons or entities until after the transferor’s death; 

therefore, they are not encumbrances or conveyances of the 

homestead by a married person.

TODA

[7] The TODA was passed in 2012 and became operative 

January 1, 2013. The TODA is modeled after the Uniform 

Real Property Transfer on Death Act (Uniform Act) passed 

in 2009. 10 The TODA allows, through a TOD deed, for 

5 Devney v. Devney, 295 Neb. 15, 886 N.W.2d 61 (2016).

6 See id.

7 Robinson v. Houston, 298 Neb. 746, 905 N.W.2d 636 (2018).

8 Stewart v. Nebraska Dept. of Rev., 294 Neb. 1010, 885 N.W.2d 723 

(2016).

9 Id.

10 See Unif. Probate Code § 6-401 et seq., 8 (part III) U.L.A. 392 (2013).
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the nonprobate “transfer” of real estate after the death of the 

“transferor.”

[8,9] TOD deeds are considered another step in what has 

been referred to as the “nonprobate revolution,” 11 whereby 

property changes hands after death through the nonprobate 

means of asset-specific will substitutes. 12 These are sometimes called nonprobate wills. 13 Prior to adopting the TODA, 

Nebraska had already recognized asset-specific nonprobate 

transfers such as payable-on-death accounts in financial institutions 14 and transfer-on-death motor vehicle certificates. 15 Such 

nonprobate wills are designed to provide an avenue for transferring property after death that is less expensive and time 

consuming than probate court proceedings. 16

[10] Under the TODA, “[p]roperty” is “an interest in real 

property located in this state which is transferable on the death 

of the owner.” 17 A transfer of such property through a TOD 

deed is “effective at the transferor’s death” 18 and at all times 

until then is fully revocable. 19 It may be revoked by several 

means, including by an “inter vivos deed” that expressly or by 

inconsistency revokes the TOD deed in whole or in part. 20

[11,12] A “[d]esignated beneficiary” of a TOD deed is 

the person designated to receive property in a TOD deed, 21

11 John H. Langbein, The Nonprobate Revolution and the Future of the Law 

of Succession, 97 Harv. L. Rev. 1108 (1984).

12 Uniform Law Commission, Uniform Laws Update, Probate and Property 

(Kieran Marion ed., 2011).

13 Langbein, supra note 11.

14 Neb. Rev. Stat. §§ 30-2716 to 30-2733 (Reissue 2016).

15 Neb. Rev. Stat. § 30-2715.01 (Reissue 2016).

16 See Langbein, supra note 11.

17 § 76-3402(6).

18 § 76-3405.

19 § 76-3406.

20 § 76-3413(a)(1).

21 § 76-3402(2).
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while the “[b]eneficiary” is a person who actually receives 

property under a TOD deed. 22 The property transferred after 

death via a TOD deed is subject to inheritance taxes. 23

[13] Section 76-3414 makes clear that during a transferor’s 

life, a TOD deed does not affect any interest of the transferor, 

the transferee, or third parties:

During a transferor’s life, a transfer on death deed 

does not:

(1) Affect an interest or right of the transferor or any 

other owner, including the right to transfer or encumber 

the property;

(2) Affect an interest or right of a transferee, even if the 

transferee has actual or constructive notice of the deed;

(3) Affect an interest or right of a secured or unsecured 

creditor or future creditor of the transferor, even if the 

creditor has actual or constructive notice of the deed;

(4) Affect the transferor’s or designated beneficiary’s 

eligibility for any form of public assistance except to the 

extent provided in section 76-3421;

(5) Create a legal or equitable interest in favor of the 

designated beneficiary; or

(6) Subject the property to claims or process of a creditor of the designated beneficiary.

[14-16] Section 76-3407 provides that “[a] transfer on death 

deed is nontestamentary.” The provision of § 76-3407 that a 

TOD deed is nontestamentary was intended to clarify that the 

TOD deed does not have to be executed with the formalities 

of a will and does not need to be probated. 24 Section 76-3407, 

modeled after the Uniform Act, does not change the fundamental feature of a TOD deed that it does not operate until the 

22 See § 76-3402(1).

23 See § 76-3410.

24 Unif. Real Prop. Transfer on Death Act § 7 (Nat. Conf. of Comrs. on Unif. 

State Laws 2009).
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transferor’s death. 25 A TOD deed is not an inter vivos grant, or 

a grant “between the living.” 26

Many authorities have commented that the Uniform Act, by 

describing a “deed” that is neither an inter vivos grant nor a 

“testamentary” devise, has created an oxymoron for traditionalists who view deeds as inherently inter vivos. 27 For instance, 

long before the recognition of any asset-specific nonprobate 

transfers, we said there is only one test whether an instrument purporting to affect the title to land is “testamentary”: 

to inquire whether it undertakes to vest any present interest or 

title therein. 28 “If it does not, but the title is to remain unaffected until the death of the owner, and an interest is then to 

accrue to the other party to the agreement, the contract is testamentary, and in ordinary cases revocable.” 29

Under the TODA, no interest is vested with the transferee 

until after the death of the owner. It is, therefore, in the traditional, common-law sense, testamentary. That said, Neb. 

Rev. Stat. § 30-2715(a) (Cum. Supp. 2020) provides in rele

vant part:

Subject to sections 30-2333 and 30-2354, a provision 

for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account 

agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, 

25 Id., § 12, comment.

26 Id., § 5.

27 See Ronald R. Volkmer, Nebraska’s Real Property Transfer on Death Act 

and Power of Attorney Act: A New Era Begins, 46 Creighton L. Rev. 499 

(2013). See, also, e.g., Danaya C. Wright & Stephanie L. Emrick, Tearing 

Down the Wall: How Transfer-on-Death Real-Estate Deeds Challenge the 

Inter Vivos/Testamentary Divide, 78 Md. L. Rev. 511 (2019); Stephanie 

Emrick, Transfer on Death Deeds: It is Time to Establish the Rules of the 

Game, 70 Fla. L. Rev. 469 (2018).

28 Teske v. Dittberner, 65 Neb. 167, 91 N.W. 181 (1902).

29 Id. at 169, 91 N.W. at 181.
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employee benefit plan, trust, marital property agreement, 

certificate of title, or other written instrument of a similar 

nature is nontestamentary.

(Emphasis supplied.) The designation in § 76-3407 of a TOD 

deed as “nontestamentary” is consistent with § 30-2715(a) and 

its designation of any nonprobate transfer on death, or nonprobate will, as “nontestamentary.”

[17] Despite the confusion that may come from the abridgement of the traditional distinction between inter vivos grants 

and testamentary devises 30 as concerns a “deed,” the Uniform 

Act has been praised as adding the legal certainty needed for 

effective estate planning. 31 “[TOD] deed is a term of art that 

has no common law background. It is something new, authorized by statute.” 32 And the TODA, like the Uniform Act, 

describes the prerequisites and effects of the TOD deed in 

great detail.

[18,19] Looking at the TODA as a whole, TOD deeds are 

“inherently quitclaim deeds,” 33 with the important distinction 

that they take effect only upon the transferor’s death and pass 

only whatever interest the decedent had in the property at 

death. On the death of the transferor, the beneficiary to the 

property subject to the TOD deed takes the property “subject to all conveyances, encumbrances, assignments, contracts, 

mortgages, liens, and other interests to which the property is 

subject at the transferor’s death.” 34 If the transferor is a joint 

owner and survived by another joint owner or owners, then the 

property that is the subject to the TOD deed belongs to the surviving joint owner or owners. Only if the transferor is the last 

surviving joint owner will the TOD deed be effective. 35

30 See Volkmer, supra note 27.

31 See id. But see Wright & Emrick, supra note 27.

32 Volkmer, supra note 27, 46 Creighton L. Rev. at 509.

33 Id. at 517.

34 § 76-3415(b).

35 § 76-3415(c).
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[20-22] Further, if other assets of the transferor’s estate are 

insufficient to pay all claims against it, as well as statutory 

allowances to the transferor’s surviving spouse and children, 

and the expenses of administration, then the beneficiary is subject to personal liability to the extent needed to pay all claims 

against the transferor’s estate, statutory allowances to the transferor’s surviving spouse and children, and the expenses of 

administration. 36 Any property subject to a TOD deed is includable in the calculation of the augmented estate under Neb. Rev. 

Stat. § 30-2314 (Reissue 2016). 37 A beneficiary who receives 

property through a TOD deed is liable to account to the personal representative of the transferor’s estate for a proportionate share of the fair market value of the equity in the interest 

the beneficiary received to the extent necessary to discharge 

the claims and allowances remaining unpaid after application 

of the transferor’s estate. 38

[23] Section 76-3417 states that a “proceeding to account” 

may be brought against the beneficiary to assert liability for 

such claims against the estate and statutory allowances. A 

proceeding to account must be commenced within 1 year after 

the death of the transferor and may not be commenced unless 

the personal representative has received a written demand by 

the surviving spouse, a creditor, a child, or a person acting for 

a child of the transferor to do so. 39 Any assets recovered from 

a proceeding to account shall be administered as part of the 

transferor’s estate. 40

[24] Nothing in the TODA expressly contemplates any circumstance under which the TOD deed of a married grantor 

must contain the spouse’s execution and acknowledgment in 

order to be valid. Section 76-3410(a)(1) states that the TOD 

36 § 76-3417(a).

37 See Volkmer, supra note 27.

38 § 76-3417(b)(1).

39 § 76-3417(b)(2).

40 § 76-3417(d).
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deed “must contain the essential elements and formalities of a 

properly recordable inter vivos deed,” “[e]xcept as otherwise 

provided in subdivision (2),” which in turn states that the TOD 

deed must provide that “the transfer to the designated bene

ficiary is to occur at the transferor’s death.” The TOD deed 

must be recorded within 30 days after being executed, but 

this recording creates no ownership rights or rights of priority 

against subsequent creditors or other claimants to the property 

that is the subject of the TOD deed. 41

The conveyances statutes, Neb. Rev. Stat. §§ 76-201 to 

76-281 (Reissue 2018), which are referenced by § 76-3410(a)(1), 

refer, logically, only to inter vivos grants. They refer to deeds 

by which real estate is created, aliened, mortgaged, or 

assigned or by which the title to any real estate is affected, 

and do not include last wills and leases for 1 year or less. 42

Such deeds involve a “grantor” and a “grantee.” 43 Section 

76-211 states:

Deeds of real estate, or any interest therein, in this 

state, except leases for one year or for a less time, if executed in this state, must be signed by the grantor or grantors, being of lawful age, and be acknowledged or proved 

and recorded as directed in sections 76-216 to 76-237.

Section 76-238 gives protection to the grantee of an inter 

vivos deed by recording the deed with the register of deeds. 

Section 76-238 states in part:

[A]ll deeds, mortgages, and other instruments of writing 

which are required to be or which under the laws of this 

state may be recorded, shall take effect and be in force 

from and after the time of delivering such instruments 

to the register of deeds for recording, and not before, as 

to all creditors and subsequent purchasers in good faith 

without notice.

41 § 76-3410(a)(4); § 76-3414.

42 § 76-203.

43 See, e.g., § 76-209.
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However, § 76-238 explicitly cross-references the TODA and 

exempts from this provision TOD deeds.

Section 76-216 of the conveyances statutes provides 

that “[t]he grantor must acknowledge the instrument with 

an acknowledgment as defined in section 64-205.” Sections 

76-217 to 76-237 elaborate upon the acknowledgment and 

recording process. None of the conveyances statutes expressly 

present any circumstance under which the deed of a married 

grantor must contain the spouse’s execution and acknowledgement in order to be valid.

There has been no allegation that the TOD deed here at issue 

is deficient in any respect other than that it lacks the execution 

and acknowledgment by David, under the theory that § 40-104 

of the homestead statutes applies. While the TODA specifically 

recognizes that the transfer may be subject to statutory allowances to the transferor’s surviving spouse and children, it does 

not specifically address homestead protections. Likewise, the 

conveyances statutes that are incorporated by reference into 

the TODA make no reference to homestead protections.

Homestead Statutes

[25] The homestead statutes are found in Neb. Rev. Stat. 

§§ 40-101 to 40-116 (Reissue 2016). We have explained that 

the purpose of the Legislature in enacting the homestead statutes was to protect the debtor and the debtor’s family residing in a home from the forced sale of the home on execution 

or attachment. 44

[26,27] The “requisite occupancy” is the most important 

factor in determining whether property is the homestead, 45

because this is the test established by the homestead statutes. 46

44 See, Blankenau v. Landess, 261 Neb. 906, 626 N.W.2d 588 (2001); Giles 

v. Miller, 36 Neb. 346, 54 N.W. 551 (1893). See, also, e.g., Quigley v. 

McEvony, 41 Neb. 73, 59 N.W. 767 (1894).

45 Giles v. Miller, supra note 44, 36 Neb. at 349, 54 N.W. at 552.

46 Davis v. Kelly, 62 Neb. 642, 87 N.W. 347 (1901).
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The term “homestead” connotes “the house and land where the 

family dwells,” “the house and parcel of land where the family 

reside and which is to them a home,” 47 and “the actual home of 

the family.” 48 Who holds title to the property is not decisive of 

whether it is the homestead of both the husband and wife who 

are occupying it 49; it is immaterial whether the title is in the 

one or the other, or part of it in one and part of it in the other, 

or in both as joint tenants or as tenants in common. 50 A homestead is not dependent upon ownership, and it does not create 

ownership interests.

[28] Homestead is defined by § 40-101 as follows:

A homestead not exceeding sixty thousand dollars in 

value shall consist of the dwelling house in which the 

claimant resides, its appurtenances, and the land on which 

the same is situated, not exceeding one hundred and sixty 

acres of land, to be selected by the owner, and not in 

any incorporated city or village, or, at the option of the 

claimant, a quantity of contiguous land not exceeding two 

lots within any incorporated city or village, and shall be 

exempt from judgment liens and from execution or forced 

sale, except as provided in sections 40-101 to 40-116.

Further, § 40-102 states:

(1) If the claimant is married, the homestead may be 

selected from the separate property of the claimant or, 

with the consent of the claimant’s spouse, from the separate property of the claimant’s spouse.

(2) If the claimant is not married, the homestead may 

be selected from any of his or her property.

We have explained that any interest in real estate, either 

legal or equitable, that gives a present right of occupancy or 

47 Engen v. Union State Bank, 121 Neb. 257, 264, 236 N.W. 741, 744 (1931) 

(internal quotation marks omitted).

48 First Trust Co. v. Bauer, 128 Neb. 725, 728, 260 N.W. 194, 195 (1935).

49 See Stout v. Rapp, 17 Neb. 462, 23 N.W. 364 (1885).

50 2 Joyce Palomar, Patton and Palomar on Land Titles § 395 (3d ed. 2003 & 

Supp. 2020).
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possession, followed by exclusive occupancy, is sufficient to 

support a homestead right therein. 51

[29,30] There are exceptions to the requirement of actual 

occupancy only where either (1) a property occupied as a 

homestead has been temporarily vacated without abandonment, and with a bona fide and subsisting intention to return, 

or (2) the claimant with the claimant’s family have the bona 

fide present intention of making the property the homestead, 

some intervening obstruction prevents immediate actual possession, the claimant clearly manifests the intention of making 

the property the homestead to put others on notice, and the 

family occupies the land as circumstances reasonably permit. 52

While the amount of the proceeds from the sale of a homestead 

is protected for a period of 6 months from a sale executed and 

acknowledged by both spouses, 53 and may be reinvested into a 

new homestead, real estate purchased with the sale of a homestead does not become the new homestead unless the requisite 

occupancy, actual or constructive, is present. 54

[31] Because the object of the homestead legislation is to 

conserve the family by “keeping a roof over it,” 55 the homestead, at least so long as the family continues to reside there 56

and to the extent it cannot be separated without depriving the 

family of its actual home, 57 is something more than the present 

worth of the exemption the homestead statutes allow. 58

51 Blankenau v. Landess, supra note 44.

52 See Davis v. Kelly, supra note 46.

53 § 40-116.

54 See Hair v. Davenport, 74 Neb. 117, 103 N.W. 1042 (1905).

55 Landon v. Pettijohn, 231 Neb. 837, 844, 438 N.W.2d 757, 762 (1989) 

(internal quotation marks omitted).

56 See, Baumann v. Franse, 37 Neb. 807, 56 N.W. 395 (1893); Stout v. Rapp,

supra note 49.

57 See, McIntosh v. Borchers, 196 Neb. 109, 241 N.W.2d 534 (1976); 

Struempler v. Peterson, 190 Neb. 133, 206 N.W.2d 629 (1973).

58 Meisner v. Hill, 92 Neb. 435, 138 N.W. 583 (1912).
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[32] Section 40-104 was designed to accomplish the goal 

of keeping a roof over the family by preventing the possibility of the indivisible family home being unilaterally conveyed 

or encumbered by fraud, thereby interfering with the family’s 

rights to occupancy. 59 Section 40-104 provides in full:

Except as otherwise provided in this section, the 

homestead of a married person cannot be conveyed or 

encumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by 

both spouses. The interest of either or both spouses may 

be conveyed or encumbered by a conservator acting in 

accordance with the provisions of the Nebraska Probate 

Code and may also be conveyed or encumbered by an 

attorney in fact appointed by and acting on behalf of 

either spouse under any power of attorney which grants 

the power to sell and convey real property. Any claim of 

invalidity of a deed of conveyance of homestead property 

because of failure to comply with the provisions of this 

section must be asserted within the time provided in sections 76-288 to 76-298.

A purchase agreement or contract for sale of homestead property signed by both spouses does not require 

acknowledgment to be enforceable.

Section 40-104 is the only homestead statute that utilizes the 

phrase “the homestead of a married person.”

[33-35] We have held that an inter vivos deed conveying 

nonhomestead property is valid between the parties despite 

the lack of proper acknowledgment. 60 We have found an inter 

vivos conveyance of indivisible homestead property to be different. We have held that under § 40-104, the conveyance of 

the family homestead away from the family during the conveyor spouse’s lifetime without both spouses’ execution and 

59 See id.

60 See Mutual of Omaha Bank v. Watson, supra note 2.
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acknowledgment is invalid. 61 However, we have clarified that 

the “statutory provision requiring the conveyance of a homestead to be executed by both husband and wife applies to a 

homestead in which both have a homestead interest” and cannot be relied on by a spouse who lacks the requisite occupancy 

to invalidate the occupying spouse’s unilateral encumbrance or 

conveyance of real estate. 62

[36] But even when both spouses have a homestead interest in the real estate, we have never held that a spouse cannot 

validly devise an ownership interest in homestead property 

without the other spouse executing and acknowledging the 

will. To the contrary, we have always recognized the validity of 

a spouse’s unilateral devise of that spouse’s title to the homestead real estate via a last will and testament, albeit subject to 

the homestead allowance and the surviving spouse’s statutory 

life estate, when that was in effect. 63 Statutes in other jurisdictions requiring both spouses’ execution and acknowledgment 

for a conveyance or an encumbrance of the homestead are 

similarly understood as applying to inter vivos acts during the 

marriage, but not to testamentary dispositions after death. 64 As 

stated in Cain v. Bunkley,

 65 in considering a statute similar to 

§ 40-104, the statutory prescription of certain forms by which 

a married person might convey or encumber an estate applies 

61 See id.

62 Engen v. Union State Bank, supra note 47, 121 Neb. at 265, 236 N.W. 

at 745. See, also, Cunningham v. Marshall, 94 Neb. 302, 143 N.W. 197 

(1913).

63 See, e.g., Gordon v. Gordon, 140 Neb. 400, 299 N.W. 515 (1941); In re 

Estate of Grobe, 101 Neb. 786, 165 N.W. 252 (1917); Meisner v. Hill,

supra note 58; Brichacek v. Brichacek, 75 Neb. 417, 106 N.W. 473 (1906); 

5 Herbert Thorndike Tiffany, The Law of Real Property § 1338 (3d ed. 

1939 & Cum. Supp. 2003).

64 See, Gregory J. Duncan, Home Sweet Home? Litigation Aspects to 

Minnesota’s Descent of Homestead Statute, 29 William Mitchell L. Rev. 

185 (2002); Cain v. Bunkley, 35 Miss. 119 (1858).

65 Cain v. Bunkley, supra note 64.
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only to inter vivos instruments and not to dispositions that take 

effect after death.

[37] It has been generally stated that homestead statutes do 

not prohibit testamentary disposition of the homestead premises by the owner, although sometimes the surviving spouse 

and children are given by statute certain rights in the land. 66

Neb. Rev. Stat. § 40-117 (1943) once provided that the surviving spouse of a homestead was entitled to a life estate in the 

real estate, which was exempt from payment of any debt or 

liability contracted by or existing against the husband and wife 

or either of them before the death of such husband or wife. 

That statute was repealed in 1974.

[38] The right to unilateral testamentary disposition of one 

spouse’s interest in homestead premises is consistent with the 

fact that a homestead right revolves around occupancy and 

does not depend upon or create ownership interests. A spouse 

with title to the property, in whole or in part, does not, by permitting the property to be occupied as the family homestead, 

give up the right that spouse would otherwise have to devise 

that spouse’s ownership interest. 67

TOD Deed Is Not Conveyance or 

Encumbrance of Homestead 

of Married Person

As discussed, a TOD deed is like a will in virtually every 

respect except it does not pass through probate. A TOD deed, 

a nonprobate will, is not effective until the transferor’s death, 

creates no legal or equitable interest in favor of the designated 

beneficiary interest during the transferor’s life, does not affect 

rights of third parties during the transferor’s lifetime, is fully 

revocable, and transfers upon death no more than whatever 

unencumbered ownership interest the transferor had at death. 

The beneficiary takes the property “subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens, 

66 5 Tiffany, supra note 63.

67 See Cain v. Bunkley, supra note 64.
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and other interests to which the property is subject at the transferor’s death” 68 and will be liable to the estate for a proportionate share of the fair market value of the equity of the interest 

the beneficiary received to the extent the estate’s assets are 

insufficient to pay all claims against it, including the statutory 

homestead allowance. We agree with Bringenberg that there is 

no logical reason why, in order to be valid, a TOD deed would 

require the nontransferor spouse to execute and acknowledge 

it, when one spouse’s last will and testament devising an interest in homestead property need not be executed and acknowledged by the other spouse in order to be valid.

More important, the plain language of the relevant statutes 

does not require the nontransferring spouse to execute and 

acknowledge a TOD deed when the property subject thereof 

is the homestead. Looking at the plain language of § 40-104, 

the word “convey” expresses intention to pass title and is 

equivalent to the word “grant.” 69 For every “grant,” there is a 

“grantor” and a “grantee.” 70 An encumbrance is any right that a 

third person holds in land which constitutes a burden or limitation on the rights of the fee titleholder. 71 These terms all connote that the instrument at issue has an inter vivos effect. The 

TODA, in contrast, does not utilize any of these terms. The 

TODA instead describes a “transfer” between a “transferor” 

and a “beneficiary.” This is the language of a “devise,” the 

passing of title of real estate upon death. 72

[39] What occurs upon a transferor’s death to property 

that is the subject of a TOD deed is not a conveyance or an 

encumbrance, but a devise. As such, a TOD deed does not fall 

68 § 76-3415(b).

69 Wilson v. Buffalo Collieries Co., 79 W. Va. 279, 91 S.E. 449 (1916).

70 See Krause v. Crossley, 202 Neb. 806, 277 N.W.2d 242 (1979).

71 See, Hartman v. Drake, 166 Neb. 87, 87 N.W.2d 895 (1958); Brewer v. 

Peatross, 595 P.2d 866 (Utah 1979).

72 See, In re Schauer, 246 B.R. 384 (D. N.D. 2000); Miller v. Bower, 260 

Pa. 349, 103 A. 727 (1918); Mills v. Tompkins, 110 A.D. 212, 97 N.Y.S. 9 

(1905).
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under the plain language of § 40-104. Moreover, Bringenberg 

is correct that because a TOD deed has no effect until after the 

transferor’s death, its subject is not the homestead of a “married person” at the time of the transfer.

We have construed the homestead protections for the purpose of protecting and preserving the home for those who 

would benefit by the provisions of such law, 73 but we would 

be reading into the statutes things that are not there if we were 

to conclude that a spouse’s ownership interest in a homestead 

property cannot validly be devised through a TOD deed without the other spouse’s execution and acknowledgment thereof. 

That, we cannot do.

[40,41] As discussed, the detailed provisions of the TODA, 

while incorporating certain conveyances statutes and explicitly 

recognizing that a transfer under a TOD deed is includable in 

the calculation of the augmented estate under § 30-2314, fail 

to incorporate any reference to § 40-104, the homestead right, 

or the need for both spouses’ execution and acknowledgment 

in any circumstance. When reading a statute, what it does not 

say is often as important as what it does say. 74 Silence can be a 

meaningful indicator of statutory meaning. 75 The Legislature’s 

failure to include any reference in the TODA to the homestead 

right is consistent with our reading of the plain language of the 

two statutory schemes here at issue.

[42-44] We also note that in determining the meaning of a 

statute, the applicable rule is that when the Legislature enacts 

a law affecting an area which is already the subject of other 

statutes, it is presumed that it did so with full knowledge 

of the preexisting legislation. 76 We presume the Legislature 

knowingly did not provide that both spouses must, under 

§ 40-104, execute and acknowledge a TOD deed pertaining 

73 Dougherty v. White, 112 Neb. 675, 200 N.W. 884 (1924).

74 Robinson v. Houston, supra note 7.

75 Id.

76 Ameritas Life Ins. v. Balka, 257 Neb. 878, 601 N.W.2d 508 (1999).
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to homestead property in order for it to be valid. 77 We presume the Legislature knowingly utilized different terminology in the TODA than the inter vivos terminology utilized in 

§ 40-104. Section 40-104 has never been construed to apply 

to last wills and testaments pertaining to homestead property, 

and it was never meant to apply to a TOD deed, a term of art 

for a nonprobate will authorized by the TODA, which has no 

common-law background and did not exist when § 40-104 

was adopted. 78

Disposition

Because we hold that, as a matter of law, § 40-104 does 

not apply to TOD deeds, regardless of whether they concern 

homestead property, the district court erred in granting summary judgment to David by declaring the TOD deed void for 

failing to satisfy § 40-104. The district court was called upon 

to decipher ancient and convoluted case law surrounding the 

homestead statutes, which has been affected by the repeal of 

several homestead provisions. At the same time, it was confronted with the TODA, which this court has never before 

addressed. Our disposition, while finding that the district court 

erred, does not impugn its efforts to conscientiously address 

the issues before it.

Because § 40-104 does not apply to TOD deeds, we need 

not determine whether the district court erred in finding there 

was no genuine issue of fact concerning whether the Meadows 

house was the homestead of a married person for purposes of 

§ 40-104. Whether the Meadows house was the homestead is 

not material. We likewise do not address Bringenberg’s assignments of error relating to the court’s evidentiary rulings that 

pertained to the question of whether the Meadows house was 

the homestead. For similar reasons, whether the premarital 

agreement waived David’s homestead rights under § 40-104 is 

not material and need not be addressed.

77 See id.

78 Volkmer, supra note 27.
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The TOD deed could devise to Bringenberg only whatever 

interest Eleanor had in the Meadows house at the time of her 

death. The district court made no determinations regarding any 

party’s ownership interests in the Meadows house. And our 

holding that the TOD deed was not invalid under § 40-104 

does not determine what interest in the Meadows house, if any, 

Eleanor had to devise.

Because we reverse the district court’s order of partial summary judgment declaring the TOD deed void, Bringenberg’s 

counterclaim for slander of title is no longer moot. We reverse, 

and remand for the court to consider the merits of Bringenberg’s 

counterclaim in light of any equitable interests James may 

raise, on remand, in the Meadows house.

CONCLUSION

For the foregoing reasons, we reverse the rulings of the 

district court granting David’s motion for partial summary 

judgment, declaring the TOD deed void, and dismissing 

Bringenberg’s counterclaim. We remand the cause with directions to consider the merits of Bringenberg’s counterclaim.

Reversed and remanded with directions.

Heavican, C.J., not participating.