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Is Nebraska a Community Property State? (2026)

Updated October 8, 2026. Quick answer: No. Nebraska is a common law state. At divorce, Neb. Rev. Stat. section 42-365 lets the court order “division of property as may be reasonable, having regard for” the circumstances, and at death the surviving spouse can elect a fraction of up to one-half of the augmented estate. The IRS lists nine community property states.

Nebraska community property at a glance

ItemWhat the documents say
RegimeCommon law
At divorceThe court divides property as may be reasonable, to distribute marital assets equitably (Neb. Rev. Stat. 42-365)
At a spouse’s deathAn elective share in any fraction not in excess of one-half of the augmented estate (Neb. Rev. Stat. 30-2313)
Federal basis at the first deathA qualified joint interest between spouses: one-half is included in the estate and steps up
SourceNebraska Legislature; IRS Publications 551 and 555; 26 U.S.C. 1014

What the Nebraska statutes say

Nebraska’s statute ties the division to the circumstances of the marriage. Its stated purpose is to “distribute the marital assets equitably between the parties”.

At divorce in Nebraska

Reasonable and equitable are court determinations on the facts: the section looks to the circumstances of the parties, the duration of the marriage and each party’s contributions. The text read sets no fixed 50/50 rule.

At a spouse’s death in Nebraska

Section 30-2313 says a surviving spouse “has a right of election to take an elective share” in “any fraction not in excess of one-half of the augmented estate”. For a decedent domiciled elsewhere, the right “governed by the law of the decedent’s domicile at death”.

What it does to basis when the first spouse dies

Because Nebraska is not on the IRS’s list of community property states, a couple’s basis at the first death depends on title. IRS Publication 551 says to “Include one-half of the value of a qualified joint interest” in the decedent’s gross estate, and the survivor’s basis is the cost of the survivor’s own half plus the basis in the half inherited. Property in the decedent’s name alone is different: 26 U.S.C. 1014(a) gives the heir a basis equal to the property’s fair market value at the date of the decedent’s death.

Computed illustration, not tax advice: suppose a Nebraska couple paid $100,000 for shares held as a qualified joint interest, and the shares are worth $400,000 when one spouse dies. The survivor’s basis is the total of two halves: $200,000 for the half that steps up plus $50,000 as the cost of the survivor’s own half, which makes $250,000. A sale at $400,000 would then show a gain of $150,000. In a community property state the same facts would give a basis of the whole $400,000. CMG’s common law step-up page goes through the difference.

What the documents do not say

  • The election is for “any fraction not in excess of one-half of the augmented estate” (section 30-2313). The petition procedure, the deadline and the default fraction are in a later section that was not read, so this page does not state them. How the augmented estate is computed (section 30-2314) was not read.

Common mistakes

  • Reading one-half as a share the law can reduce; the spouse may elect any fraction not in excess of one-half.
  • Assuming the answer in this state settles it for a couple who move; the rules depend on the state where the spouses are domiciled and, for property in a trust, on the trust.

Related: why only half steps up in a common law state, Nebraska retirement taxes, and Nebraska probate cost.

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Sources

Sources: the primary documents linked above, read on October 8, 2026. General information, not tax advice. Your own facts decide the outcome, and a tax professional or the state agency itself is the right place to confirm anything consequential.

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