and reviewed the nature of the evidence offered at trial. Importantly, the appellate court also concluded that the gifts made to Judith by her mother did not lose their nonmarital character because they were spent on renovations that benefited the entire family. “With some exceptions, the marital estate does not include property acquired by one of the parties through gift or inheritance. And there is no exception where an otherwise nonmarital monetary gift is spent on a family expense.”11 Conclusion The Weston decision outlines the burdens of proof moving parties possess relative to the classification of property as nonmarital in Nebraska. The case clarifies that the general “greater weight” burden applies to those determinations unless an exception requires application of the more rigorous “clear, unequivocal, and convincing” burden of proof. The decision also identifies the joint conveyance of property as an example requiring application of the exception burden. Bryan Robertson is a past chairman and 32-year member of the Nebraska Society of CPAs. He serves as an adjunct professor of accounting at Nebraska Wesleyan University. For more information, contact him at broberts@nebrwesleyan.edu. ENDNOTES 1 Weston v. Weston, 32 Neb. App. 822. 2 The term “burden of proof” is defined by Black’s Law Dictionary in part as “[t]he obligation of a party to establish by evidence a requisite degree of belief concerning a fact.” 3 Weston v. Weston, 32 Neb. App. 822, at 830 citing Rhode v. Rhode, 303 Neb. 85. 4 At trial, Benjamin and his mother offered testimony regarding the nature of the real estate transfer. Benjamin testified that the real estate transfer was a gift to him from his parents. His mother corroborated that testimony. Judith, however, in her testimony, contested those assertions. 5 Weston v. Weston, 32 Neb. App. 822, at 831 citing Salmon v. Salmon, 219 Neb. 899. 6 Weston v. Weston, 32 Neb. App. 822, at 832. 7 At trial, Judith and her mother testified that there was an understanding between them and Benjamin that the renovation funding was an advance on Judith’s inheritance. Judith’s mother testified that she had discussed the issue with Judith’s siblings and explained to them that the renovation expenditures would be subtracted from the amount of inheritance Judith would have otherwise received. Judith’s mother also testified that she tracked the amount she spent on the renovation on a weekly basis, maintaining an itemized list and calculating an itemized total of $123,947.79. Benjamin, on the other hand, testified that Judith’s parents characterized the renovation funding as gifts to benefit the entire family. 8 The court indicated that deed titling was an exception to the general burden rule created by the Nebraska Supreme Court. “[T]he conveyance of real estate by Benjamin’s parents utilized the ‘clear, unequivocal, and convincing’ burden of proof because it fell under an exception used by the Supreme Court.” Weston v. Weston, 32 Neb. App. 822, at 833. 9 Weston v. Weston, 32 Neb. App. 822, at 833. 10 The appellate court, then, concluded that Judith satisfied her burden of proof. Interestingly, the trial court reached the same conclusion. It did so, though, applying the wrong standard. 11 Weston v. Weston, 32 Neb. App. 822, at 835 citing Becher v. Becher, 209 Neb. 206. With more than 50 years of experience in the intricacies of Estate Planning, the team at Endacott Timmer knows the importance of getting the details right. endacotttimmer.com 402-817-1000 If you fail to plan, you plan to fail. Call the Estate Planning professionals. 31 www.nescpa.org
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