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09/22/2017 09:13 AM CDT




                                                       - 570 -
                                  Nebraska Supreme Court A dvance Sheets
                                          297 Nebraska R eports
                                             IN RE ESTATE OF PSOTA
                                                Cite as 297 Neb. 570




                               In re Estate of Eldon R. Psota, deceased.
                            Sharlene Psota, appellant, v. James Psota and
                              Janice Brown, Copersonal R epresentatives
                                   of the Estate of Eldon R. Psota,
                                          deceased, appellees.
                                                   ___ N.W.2d ___

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

                1.	 Decedents’ Estates: Appeal and Error. An appellate court reviews
                    probate cases for error appearing on the record made in the county court.
                2.	 Decedents’ Estates: Judgments: Appeal and Error. When reviewing
                    questions of law in a probate matter, an appellate court reaches a conclu-
                    sion independent of the determination reached by the court below.
                3.	 Decedents’ Estates: Contracts: Waiver. Neb. Rev. Stat. § 30-2316
                    (Reissue 2016) applies when determining whether a surviving spouse
                    has waived rights to the property or estate of a decedent spouse by sign-
                    ing a written contract, agreement, or waiver.
                4.	 Statutes: Legislature: Presumptions. In enacting a statute, the
                    Legislature must be presumed to have knowledge of all previous legisla-
                    tion upon the subject.
                5.	 Statutes: Legislature: Presumptions: Intent. The Legislature is pre-
                    sumed to know the language used in a statute, and if a subsequent act on
                    the same or similar subject uses different terms in the same connection,
                    the court must presume that a change in the law was intended.
                6.	 Statutes. It is not within the province of a court to read a meaning into
                    a statute that is not warranted by the language; neither is it within the
                    province of a court to read anything plain, direct, or unambiguous out of
                    a statute.
                7.	 Decedents’ Estates: Waiver: Proof. Under the plain language of Neb.
                    Rev. Stat. § 30-2316(b) (Reissue 2016), a surviving spouse must satisfy
                    the requirements of both subsections (b)(1) and (b)(2) in order to prove
                    a waiver signed by the surviving spouse is unenforceable.
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                            IN RE ESTATE OF PSOTA
                               Cite as 297 Neb. 570

  Appeal from the County Court for Valley County: A lan L.
Brodbeck, Judge. Affirmed.
      Michael J. O’Bradovich, P.C., for appellant.
  Mark L. Eurek, of Law Office of Mark L. Eurek, P.C., for
appellee Janice Brown.
   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
   Stacy, J.
   Sharlene Psota filed an application to be treated as an omit-
ted spouse under a section of the Nebraska Probate Code1
after her husband Eldon R. Psota made no provision for her
in his will. The copersonal representatives of Eldon’s estate
resisted the application, arguing Sharlene waived all her rights
to Eldon’s estate in a prenuptial agreement. The probate court
denied the application, and Sharlene filed this appeal. We
affirm the decision of the probate court.
                            FACTS
   Sharlene and Eldon married on September 24, 2011. It was
a second marriage for both parties, and each had children from
a prior marriage. Approximately 1 week before their wed-
ding, Eldon suggested a prenuptial agreement, and Sharlene
agreed. Six days before the wedding, they met with an attorney
selected by Eldon. A few days later, they met with the attor-
ney again and reviewed a draft prenuptial agreement. Sharlene
requested revisions to the agreement, which the attorney incor-
porated. They returned to the attorney’s office the day before
their wedding and signed the final agreement.
   As pertinent to the issues on appeal, the agreement recited
that “both parties are desirous of completely and absolutely
disclaiming any right of inheritance or any interest of any

 1	
      See Neb. Rev. Stat. § 30-2320 (Reissue 2016).
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           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                      IN RE ESTATE OF PSOTA
                         Cite as 297 Neb. 570

nature whatsoever in and to the property of the other party
that was accumulated prior to their forthcoming marriage.”
It further provided that “each party has made frank and full
disclosure each to the other of all property of every nature
whatsoever that they now hold.” The agreement provided
that each party “absolutely and completely” disclaimed “any
interest of any nature whatsoever” that he or she had in the
real and personal property of the other and acknowledged that
“full and complete disclosure” had been made of all property
owned by the other.
   The agreement recited that attached as “Exhibit ‘A’” was
Eldon’s “statement of the property” and his “most recent
income tax return,” and attached as “Exhibit ‘B’” was
Sharlene’s statement of property and most recent income
tax return. Both exhibits were attached to the agreement and
contained lists of each party’s real property, without any val­
uations. Neither exhibit listed any personal property, and no
income tax returns were attached. With respect to the property
disclosures, the agreement provided: “Each party understands
that said [property] statements are made in general terms, and
that each party does agree and acknowledge that [he or she
does], in fact, have personal knowledge of the full extent of
the other’s property, and that said [property lists] are only
representative in nature.” The agreement further stated that
each party
      shall have the right to dispose of [his or her] entire estate
      and each does waive any and all interest of any nature
      whatsoever upon the estate of the other, and each spe-
      cifically waives herein a spouse’s elective share, home-
      stead allowance, exempt allowance, family allowance,
      augmented estate, and all testate and intestate rights.
   Eldon died in August 2013. His will, executed approxi-
mately 8 years before his marriage to Sharlene, did not leave
anything to her. The inventory of Eldon’s estate contained
approximately $10 million in assets, the bulk of which related
to the real property he owned.
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                            IN RE ESTATE OF PSOTA
                               Cite as 297 Neb. 570

   In November 2015, Sharlene filed an application to be
treated as an omitted spouse under Neb. Rev. Stat. § 30-2320
(Reissue 2016). That statute provides that if a testator fails to
provide by will for a surviving spouse who married the testator
after the execution of the will, the omitted spouse shall receive
the same share of the estate he or she would have received if
the decedent had left no will.2 The statute also provides that the
rights of the omitted spouse can be “waived pursuant to section
30-2316.”3 Neb. Rev. Stat. § 30-2316 (Reissue 2016) allows a
surviving spouse to waive the right of election “by a written
contract, agreement, or waiver signed by the surviving spouse”
either before or after the marriage.
   Eldon’s estate resisted Sharlene’s application, arguing she
waived her rights to Eldon’s estate in the prenuptial agreement.
After holding an evidentiary hearing at which Sharlene testi-
fied and the prenuptial agreement was admitted into evidence,
the county court found the prenuptial agreement was valid
under § 30-2316. It held that Sharlene had waived the right to
take as an omitted spouse, and denied her application for share
of an omitted spouse. Sharlene filed this timely appeal, which
we moved to our docket.4

                  ASSIGNMENTS OF ERROR
   Sharlene assigns, restated and consolidated, that the trial
court erred in (1) finding she was aware of the value of Eldon’s
real property, when it was not valued in the prenuptial agree-
ment; (2) finding she should have known the value of Eldon’s
estate when the prenuptial did not list his personal property or
contain his tax returns; and (3) finding the prenuptial agree-
ment was enforceable when it failed to meet several statutory
requirements on its face.

 2	
      Id.
 3	
      § 30-2320(a).
 4	
      Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                            IN RE ESTATE OF PSOTA
                               Cite as 297 Neb. 570

                  STANDARD OF REVIEW
   [1] An appellate court reviews probate cases for error appear-
ing on the record made in the county court.5
   [2] When reviewing questions of law in a probate matter, an
appellate court reaches a conclusion independent of the deter-
mination reached by the court below.6
                            ANALYSIS
                       Statutory Background
   The probate court concluded the prenuptial agreement was
an enforceable waiver of Sharlene’s statutory right to receive a
share of Eldon’s estate as an omitted spouse. Sharlene argues
the waiver was unenforceable under § 30-2316(b) for a variety
of reasons. We begin our analysis with a review of the govern-
ing statute.
   [3] Section 30-2316 applies when determining whether a
surviving spouse has waived rights to the property or estate of
a decedent spouse by signing a written contract, agreement, or
waiver. Under that statute:
         (b) A surviving spouse’s waiver is not enforceable if
      the surviving spouse proves that:
         (1) he or she did not execute the waiver voluntarily;
         (2) the waiver was unconscionable when it was exe-
      cuted and, before execution of the waiver, he or she:
         (i) was not provided a fair and reasonable disclosure of
      the property or financial obligations of the decedent;
         (ii) did not voluntarily and expressly waive, in writ-
      ing, any right to disclosure of the property or financial
      obligations of the decedent beyond the disclosure pro-
      vided; and
         (iii) did not have, or reasonably could not have had, an
      adequate knowledge of the property or financial obliga-
      tions of the decedent.

 5	
      In re Estate of Pluhacek, 296 Neb. 528, 894 N.W.2d 325 (2017).
 6	
      Id.
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               Nebraska Supreme Court A dvance Sheets
                       297 Nebraska R eports
                           IN RE ESTATE OF PSOTA
                              Cite as 297 Neb. 570

   A similar statute, Neb. Rev. Stat. § 42-1006 (Reissue 2016),
governs the enforceability of premarital agreements generally,
and most often is applied in proceedings for the dissolution of
marriage.7 Section 42-1006 provides in pertinent part:
          (1) A premarital agreement is not enforceable if the
       party against whom enforcement is sought proves that:
          (a) That party did not execute the agreement volun-
       tarily; or
          (b) The agreement was unconscionable when it was
       executed and, before execution of the agreement, that
       party:
          (i) Was not provided a fair and reasonable disclosure
       of the property or financial obligations of the other party;
          (ii) Did not voluntarily and expressly waive, in writ-
       ing, any right to disclosure of the property or financial
       obligations of the other party beyond the disclosure pro-
       vided; and
          (iii) Did not have, or reasonably could not have had, an
       adequate knowledge of the property or financial obliga-
       tions of the other party.
   Because the language and purpose of the two statutes is sim-
ilar, case law interpreting and applying § 42-1006(1) will gen-
erally be instructive when interpreting and applying § 30-2316.
However, there is one notable difference between the two
statutes: § 42-1006(1) contains the connector “or” between
subsections (a) and (b), but § 30-2316(b) has no connector
between subsections (1) and (2). Eldon’s estate argues that this
statutory difference is significant and impacts Sharlene’s bur-
den of proof in this case. We agree.
   In Mamot v. Mamot,8 we considered the Legislature’s inclu-
sion of the term “or” in § 42-1006(1)(a), and we held that

 7	
      See, Mamot v. Mamot, 283 Neb. 659, 813 N.W.2d 440 (2012); Edwards v.
      Edwards, 16 Neb. App. 297, 744 N.W.2d 243 (2008).
 8	
      Mamot v. Mamot, supra note 7.
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                            IN RE ESTATE OF PSOTA
                               Cite as 297 Neb. 570

those seeking to prove a premarital agreement is unenforce-
able have the burden of proving “either that [he or] she
did not voluntarily execute the premarital agreement or that
the premarital agreement was unconscionable when it was
executed.”9
   The present case requires us to determine whether the
absence of the term “or” between § 30-2316(b)(1) and (2)
is significant as it regards the burden of proof. Restated, the
question is whether a surviving spouse must satisfy both sub-
sections (b)(1) and (b)(2) of § 30-2316 to prove that a waiver
signed by the surviving spouse is unenforceable.
   [4,5] We note that §§ 30-2316(b) and 42-1006(1) were
enacted by the Legislature in the same bill.10 In enacting a
statute, the Legislature must be presumed to have knowledge
of all previous legislation upon the subject.11 The Legislature
is also presumed to know the language used in a statute, and if
a subsequent act on the same or similar subject uses different
terms in the same connection, the court must presume that a
change in the law was intended.12
   We presume the Legislature, having enacted §§ 30-2316
and 42-1006 as part of the same bill, was fully cognizant of
the language used, and easily could have included the term
“or” in both statutes when setting forth the evidence required
to prove an agreement is unenforceable. It instead included
“or” between subsections (1)(a) and (b) in § 42-1006, but
omitted any connector between subsections (b)(1) and (2) in
§ 30-2316.
   [6] During oral argument, Sharlene urged this court to read
the term “or” into § 30-2316(b)(1) and apply the same burden
of proof under both statutes. But it is not within the province

 9	
      Id. at 664-65, 813 N.W.2d at 446 (emphasis in original).
10	
      See 1994 Neb. Laws, L.B. 202.
11	
      Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012).
12	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                            IN RE ESTATE OF PSOTA
                               Cite as 297 Neb. 570

of a court to read a meaning into a statute that is not war-
ranted by the language; neither is it within the province of a
court to read anything plain, direct, or unambiguous out of
a statute.13
   [7] We decline the invitation to read into § 30-2316(b) lan-
guage which the Legislature plainly omitted. We instead hold
that under the plain language of § 30-2316(b), a surviving
spouse must satisfy the requirements of both subsections (b)(1)
and (b)(2) in order to prove a waiver signed by the surviving
spouse is unenforceable. We next consider whether the pro-
bate court erred in finding Sharlene did not meet this burden
of proof.
                  Voluntariness of Execution
   Under § 30-2316(b)(1), Sharlene had the burden to prove
she “did not execute the waiver voluntarily.” The probate
court implicitly found she failed to meet this burden and
concluded she “knowingly and voluntarily entered” into the
waiver. Sharlene does not assign error to this finding, and her
brief concedes that she “does not deny that she went to the
office of the attorney and signed the Agreement voluntarily.”14
However, Sharlene’s briefing urges us to adopt a definition of
“voluntarily” which includes consideration of factors beyond
the execution of the agreement.
   We have never addressed what “voluntarily” means in the
context of § 30-2316(b)(1). The statute does not define the
term. Black’s Law Dictionary defines “voluntarily” as “[i]nten-
tionally; without coercion.”15 In Edwards v. Edwards,16 the
Nebraska Court of Appeals considered the meaning of “vol-
untarily” in the context of a dissolution case where the wife

13	
      State v. Warriner, 267 Neb. 424, 675 N.W.2d 112 (2004); State v. Gartner,
      263 Neb. 153, 638 N.W.2d 849 (2002).
14	
      Brief for appellant at 13.
15	
      Black’s Law Dictionary 1806 (10th ed. 2014).
16	
      Edwards v. Edwards, supra note 7.
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                             IN RE ESTATE OF PSOTA
                                Cite as 297 Neb. 570

challenged the enforceability of a premarital agreement under
§ 42-1006(1). That court found instructive a five-factor test
developed by a California court under the Uniform Premarital
Agreement Act. We considered the same five-factor test in
Mamot v. Mamot,17 observing that “[t]he California court iden-
tified the following factors that a court might consider”:
          (1) “coercion that may arise from the proximity of exe-
       cution of the agreement to the wedding, or from surprise
       in the presentation of the agreement”;
          (2) “the presence of absence of independent counsel or
       of an opportunity to consult independent counsel”;
          (3) “inequality of bargaining power—in some cases
       indicated by the relative age and sophistication of the
       parties”;
          (4) “whether there was full disclosure of assets”; and
          (5) the parties’ understanding of the “rights being
       waived under the agreement or at least their awareness of
       the intent of the agreement.”18
    Here, Sharlene concedes she “went to the office of the
Attorney and signed the agreement voluntarily.”19 Her brief
asserts, however, that “voluntariness” under § 30-2316(b)
requires “more than intentionally affixing one’s name to a
document”20 and instead involves an application of all five
Edwards/Mamot factors. Essentially, she invites this court
to apply the Edwards/Mamot analysis to cases governed by
§ 30-2316. We decline this invitation for two reasons.
    First, we note the Edwards/Mamot factors examine not only
the procedural aspects of executing the agreement, but also

17	
      Mamot v. Mamot, supra note 7.
18	
      Id. at 665-66, 813 N.W.2d at 447, quoting In re Marriage of Bonds, 24
      Cal. 4th 1, 5 P.3d 815, 99 Cal. Rptr. 2d 252 (2000) (superseded by statute
      as stated in In re Marriage of Cadwell-Faso and Faso, 191 Cal. App. 4th
      945, 119 Cal. Rptr. 3d 818 (2011)).
19	
      Brief for appellant at 13.
20	
      Id.
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               Nebraska Supreme Court A dvance Sheets
                       297 Nebraska R eports
                          IN RE ESTATE OF PSOTA
                             Cite as 297 Neb. 570

the substantive terms of the agreement regarding the full dis-
closure of assets. In that respect, the Edwards/Mamot factors
tend to combine the separate elements of proof required under
§ 30-2316(b)(1) and (2), and frustrate judicial determination of
whether both statutory requirements have been proved.
   More directly, Sharlene does not explain in her brief to this
court how application of the Edwards/Mamot factors would
show the probate court erred in finding that her waiver was
voluntarily executed. She makes no attempt to explain how the
evidence relates to the individual factors or suggest any error
in the probate court’s reasoning or analysis.
   On the record before us, Sharlene has not established that
the probate court erred in finding she executed the waiver
voluntarily. Having failed to prove she did not execute the
waiver voluntarily under § 30-2316(b)(1), she cannot meet
her burden of proving the waiver was unenforceable. For this
reason, we need not reach her arguments as to the uncon­
scionability of the waiver under § 30-2316(b)(2), as an appel-
late court need not engage in an analysis not necessary to
resolve the appeal.21
                       CONCLUSION
  Finding no error in the probate court’s conclusion that
Sharlene executed the waiver voluntarily, we affirm that court’s
decision denying her application to take as an omitted spouse.
                                                    A ffirmed.

21	
      See In re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 469
      (2017).
