Chambers v. Bringenberg ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/01/2021 08:10 AM CDT
- 888 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888James 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 inter-
pretation 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.
- 889 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 8888. Decedents’ Estates: Deeds: Wills. Under transfer-on-death deeds, prop-
erty changes hands after death through the nonprobate means of asset-
specific 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-on-
death 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 nontestamen-
tary 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 quit-
claim 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 prop-
erty 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 trans-
feror’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 allow-
ances to the transferor’s surviving spouse and children, and the expenses
of administration, then the beneficiary is subject to personal liability
- 890 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888to 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 prop-
erty 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-on-
death 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 occu-
pancy, 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 mak-
ing 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.
- 891 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 88830. 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 can-
not 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 accom-
plish the goal of keeping a roof over the family by preventing the pos-
sibility 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 nonhome-
stead 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 home-
stead 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 disposi-
tion 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 home-
stead, 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 trans-
feror’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
- 892 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888deed 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 impor-
tant 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 pre-
sumed 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 prop-
erty 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 transfer-
on-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
- 893 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 8882016). Section 40-104 provides that the “homestead of a mar-
ried 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 consist-
ing 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).
- 894 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888house). 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 liv-
ing 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, appar-
ently 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 exe-
cute 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 injunc-
tive relief that Eleanor told him the Meadows house was
- 895 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888replacing 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 right-
ful 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, elec-
tion 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
- 896 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888a notice of lis pendens against the Meadows house, which
cloud on her title allegedly was filed in reckless or wanton dis-
regard 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 convey-
ing a homestead interest.
David argued at the hearing that the court was being asked
to decide the “narrow question whether a [TOD] Deed is sub-
ject 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 ques-
tion 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 “home-
stead.” 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
- 897 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888had 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 require-
ments for effectuating TOD deeds did the Legislature require a
spouse’s signature when the deed involves jointly owned prop-
erty or a “homestead.”
This was consistent, Bringenberg argued, with the intent
of the TODA to allow TOD deeds to function as will substi-
tutes 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 inter-
est 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 affi-
davit 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 mes-
sages between James and his adult son, David’s grandson, in
February and March 2018.
- 898 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888Court’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 home-
stead. Eleanor was a “married person,” and she lived at the
Meadows house; thus the court surmised, it was “the home-
stead of a married person” subject to § 40-104. Having found
that the Meadows house was the homestead of Eleanor, “a mar-
ried 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 instru-
ment is wholly “void.” 2 The court also presented several rea-
sons 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).
- 899 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888The 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 “counter-
claim” for damages as a result of David’s allegedly frivo-
lous complaint.
Appeals and Subsequent
District Court Orders
Counsel for David’s estate filed on June 5, 2020, a sugges-
tion of death and motion to substitute James, the personal rep-
resentative 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.
- 900 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888ASSIGNMENTS OF ERROR
Bringenberg assigns that the district court erred in (1) find-
ing 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 home-
stead 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 con-
sider 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 assign-
ments necessary to our disposition of this appeal, and we ulti-
mately 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 judg-
ment, 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.- 901 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888an 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 inter-
preting 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 rea-
sons 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).
- 902 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888the 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 some-
times 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 institu-
tions 14 and transfer-on-death motor vehicle certificates. 15 Such
nonprobate wills are designed to provide an avenue for trans-
ferring 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).
- 903 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888while 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 credi-
tor 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 funda-
mental 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).
- 904 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888transferor’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 tradition-
alists 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 instru-
ment 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 unaf-
fected until the death of the owner, and an interest is then to
accrue to the other party to the agreement, the contract is testa-
mentary, 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 tra-
ditional, 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 pol-
icy, contract of employment, bond, mortgage, promis-
sory note, certificated or uncertificated security, account
agreement, custodial agreement, deposit agreement, com-
pensation 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.
- 905 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888employee 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 nonpro-
bate will, as “nontestamentary.”
[17] Despite the confusion that may come from the abridge-
ment 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, autho-
rized 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 “sub-
ject 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 sur-
viving 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).
- 906 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888[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 sub-
ject to personal liability to the extent needed to pay all claims
against the transferor’s estate, statutory allowances to the trans-
feror’s surviving spouse and children, and the expenses of
administration. 36 Any property subject to a TOD deed is includ-
able 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 per-
sonal representative of the transferor’s estate for a proportion-
ate 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 cir-
cumstance 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).
- 907 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888deed “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 exe-
cuted in this state, must be signed by the grantor or grant-
ors, 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.
- 908 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888However, § 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 acknowledge-
ment 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 allow-
ances 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 stat-
utes was to protect the debtor and the debtor’s family resid-
ing 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).
- 909 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888The 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 home-
stead 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 sepa-
rate 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).
- 910 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888possession, 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 abandon-
ment, 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 pos-
session, 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 home-
stead 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 home-
stead, 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).
- 911 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888[32] Section 40-104 was designed to accomplish the goal
of keeping a roof over the family by preventing the possibil-
ity 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 con-
veyed 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 sec-
tions 76-288 to 76-298.
A purchase agreement or contract for sale of home-
stead 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 dif-
ferent. We have held that under § 40-104, the conveyance of
the family homestead away from the family during the con-
veyor spouse’s lifetime without both spouses’ execution and
59
See id.
60
See Mutual of Omaha Bank v. Watson, supra note 2.
- 912 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888acknowledgment is invalid. 61 However, we have clarified that
the “statutory provision requiring the conveyance of a home-
stead to be executed by both husband and wife applies to a
homestead in which both have a homestead interest” and can-
not 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 inter-
est 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 home-
stead 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 jurisdic-
tions 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.
- 913 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888only 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 prem-
ises 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 surviv-
ing 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 per-
mitting 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 convey-
ances, encumbrances, assignments, contracts, mortgages, liens,
66
5 Tiffany, supra note 63.
67
See Cain v. Bunkley, supra note 64.
- 914 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888and other interests to which the property is subject at the trans-
feror’s death” 68 and will be liable to the estate for a proportion-
ate 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 inter-
est in homestead property need not be executed and acknowl-
edged 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 limita-
tion on the rights of the fee titleholder. 71 These terms all con-
note 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).
- 915 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888under 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 “mar-
ried person” at the time of the transfer.
We have construed the homestead protections for the pur-
pose 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 with-
out 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).
- 916 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888to homestead property in order for it to be valid. 77 We pre-
sume the Legislature knowingly utilized different terminol-
ogy 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 sum-
mary 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 con-
fronted 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 assign-
ments 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.
- 917 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
CHAMBERS v. BRINGENBERG
Cite as 309 Neb. 888The 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 sum-
mary 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 direc-
tions to consider the merits of Bringenberg’s counterclaim.
Reversed and remanded with directions.
Heavican, C.J., not participating.