By Thomas R. Grover
Nevada probate law includes several tools attorneys can use to protect surviving spouses. The loss of a spouse is a devastating event. Practitioners who fully utilize the various tools which protect surviving spouses can make a difficult chapter of life more bearable.
Throughout this article, I use the term “surviving spouse” to describe a widow or widower. For purposes of this article, the term not only refers to married people, but also partners in a formal, registered domestic partnership. “Domestic partners have the same rights, protections and benefits, and are subject to the same responsibilities, obligations and duties under law, . . . as are granted to and imposed upon spouses.” NRS § 122A.200(1)(a).
Petition to set aside: protecting surviving spouses & minor children
A petition to set aside estate without administration is one of the most powerful tools to protect a Nevada surviving spouse. Normally, full probate administration begins with a petition to appoint a personal representative, followed by filings like an inventory, accounting, and other actions, depending on the size and nature of the estate. The full process can last at least several months.
In contrast, a petition to set aside can distribute an estate to a surviving spouse and/or minor children with a single petition, bypassing the ordinary and often cumbersome estate administration process. Thus, the process is called a petition to set aside without administration.
Where an estate is worth less than $100,000.00, “the court must set aside the estate for the benefit of the surviving spouse or . . . or minor children . . .” NRS § 146.070(3) (emphasis added). This is mandatory, not discretionary, language.
Creditors are not paid when a surviving spouse petitions for a “set aside” unless “manifest injustice” would result. NRS § 146.070(4). As a practical matter, courts almost universally side with a surviving spouse when a set aside petition is challenged by a creditor.
The calculation of the $100,000.00 threshold is not as simple as it may seem. The petitioning surviving spouse must disclose nonprobate transfers to the court, which are counted against the $100,000 threshold. NRS § 146.070(9). A nonprobate transfer is “a transfer of any property or interest in property from a decedent to one or more other persons by operation of law or by contract that is effective upon the death of the decedent…” NRS § 132.237, NRS § 111.721(1). A bank account with a “payable-on-death” designation is an example of a nonprobate transfer.
By way of example, if an estate only had $50,000.00 in assets, but there was a $200,000.00 payable-on-death account in favor of the surviving spouse, that estate would not qualify for a set aside under NRS § 146.070 because the combined value of the estate and nonprobate transfer exceeds the $100,000.00 threshold.
The $100,000.00 threshold is determined as of the date of death. If estate assets have appreciated since the date of death, that appreciation is not counted against the $100,000.00 threshold. Practitioners should check for differences between date of death and current values, especially where considerable time has passed.
Probate homestead
A surviving spouse may also be entitled to a probate homestead, which allows them to stay in the marital residence even though the residence would otherwise be disposed of to satisfy other heirs or creditors.
NRS § 146.050(2) provides that “a homestead may be set apart by the court to the surviving spouse, […] for a limited period if deemed advisable considering the needs and resources of the family and the nature, character and obligations of the estate” (emphases added).
Unlike a set aside, a probate homestead is discretionary. The purpose of a probate homestead is to protect the surviving spouse from destitution or impoverishment. The court will examine the resources available to the surviving spouse and their needs in exercising its discretion. A surviving spouse with ample resources available to them is unlikely to obtain a homestead, especially where it would impede the rights of others.
Surviving spouses & community property
Nevada’s community property laws provide another useful tool to protect the interests of surviving spouses. Pursuant to NRS § 123.220, all property acquired during marriage, with very limited exceptions, is community property.
When one spouse dies, “[a]n undivided one-half interest in the community property is the property of the surviving spouse and his or her sole separate property.” NRS § 123.250(1)(a). That one-half, separate property interest is not subject to estate administration. NRS § 123.250(1)(a). The other one-half, which is attributed to the decedent, is subject to estate administration. NRS § 123.250(1)(b)(2). The one-half interest subject to estate administration goes entirely to the surviving spouse, unless a valid will directs otherwise. NRS § 123.250(1)(b)(1).
Recognizing the separate property interests following the death of a spouse is critical to protecting the rights of a surviving spouse.
First, because half of the estate passes outside of estate administration, the estate may fall under the $100,000.00 set aside threshold, where it would not otherwise. So, for example, if there are $190,000.00 in community assets, all titled in the Decedent’s name, half ($95,000.00) passes to the surviving spouse outside of probate pursuant to NRS § 123.250(1)(b)(1). The remaining half ($95,000.00) falls below the set aside threshold and can be distributed to the surviving spouse with a single petition.
Second, splitting community property at death can protect the surviving spouse from the reach of creditor claims. If a given debt is individual, and the creditor files a claim that renders the estate insolvent, that creditor cannot reach the one-half of the community that passed to the surviving spouse outside of estate administration at death. Combined with a set aside, it may be possible to completely defeat an otherwise valid creditor claim.
It is a best practice to seek declaratory relief in the initial probate petition, or set aside petition, that one half of the community has already passed outside of estate administration.
Conclusion
Nevada law provides several important tools to protect the interests of surviving spouses. These tools can assist practitioners to maximize the interests and security of a surviving spouse.
About the author
Thomas R. Grover is a partner with Blackrock Legal. His practice focuses on estate and trust litigation matters, including resolution of the rights of surviving spouses.
About the article
This article was originally published in the Communiqué (May 2025), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2025/communique-may-2025/. The printed magazine was mailed to CCBA members on April 30, 2025.
The articles and advertisements appearing in Communiqué magazine do not necessarily reflect the opinion of the CCBA, the CCBA Publications Committee, the editorial board, or the other authors. All legal and other issues discussed are not for the purpose of answering specific legal questions. Attorneys and others are strongly advised to independently research all issues.
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