## Facts

- Joseph D. Clarkson died testate, survived by his wife, Evelyn Bell Clarkson, who had been mentally incompetent since 1965 and was unlikely to recover.
- The marriage began in 1953; each spouse had children from prior marriages, and they had no children together.
- Joseph’s will created a trust for Evelyn equal to one-fourth of his net estate (as determined for federal estate tax purposes, unreduced by taxes).
- The trustee was directed to pay all income to Evelyn and could distribute principal as deemed necessary or desirable for her support and maintenance.
- At Evelyn’s death, the trust terminated; she held a general testamentary power of appointment over the remainder, and absent exercise, specified gifts went to her children with the balance to Joseph’s daughters and their issue.
- The estate’s net value was approximately $1.2–$1.37 million, consisting largely of personal property rather than real estate.
- Whether Evelyn took under the will or renounced and took by descent and distribution, the share was one-fourth; the difference was the form of the interest: a life beneficial trust interest versus a fee simple interest.
- The county court elected on Evelyn’s behalf to take under the will; a guardian ad litem challenged that election as contrary to Evelyn’s financial interest.
- The district court vacated the county court’s election and elected renunciation; the successor executor appealed.

## Issues

1. Under Neb. Rev. Stat. § 30-108(2), what standard governs a court’s election for an incompetent surviving spouse to take under or against a will?
2. When the fractional share is the same under either option, should the court prefer an outright fee interest over a beneficial trust interest based on the spouse’s pecuniary advantage?
3. To what extent may the testator’s intent or the interests of other beneficiaries influence the election made for the incompetent spouse?

## Decision

- The Nebraska Supreme Court affirmed the district court.
- The controlling consideration in electing for an incompetent surviving spouse is the spouse’s best interests, generally measured by pecuniary advantage.
- It was in Evelyn’s best interests to renounce the will and take her statutory share in fee simple rather than accept the trust interest.
- The testator’s intent and the interests of other heirs or remaindermen were not controlling in making the election.

## Legal Principles

- A court acting under an incompetent-spouse election statute must act as a fiduciary for the spouse and choose the option that best serves the spouse’s welfare.
- The spouse’s “best interests” are commonly evaluated in economic terms, favoring the alternative of greater pecuniary value.
- Where the dollar fraction is the same, an outright fee interest may be treated as more valuable than a beneficial interest in a trust with trustee discretion and termination at the spouse’s death.
- The testator’s contrary estate-plan preferences and the expected interests of other beneficiaries generally do not override the spouse-centered statutory election standard.
- The election analysis centers on the spouse’s position under the competing options, not on whether the spouse might be supported from other sources.

## Conclusion

The court held that, when electing for a permanently incompetent surviving spouse, the decisive criterion is the spouse’s best interests—typically the greater pecuniary benefit—and therefore affirmed an election to renounce a will that offered a trust interest in favor of taking the same fractional share outright in fee simple.


Clarkson v. First Nat’l Bank of Omaha (In re Estate of Clarkson), 193 Neb. 201, 226 N.W.2d 334 (Neb. 1975)