74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 81
House Bill 2381
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Committee on
Judiciary for Oregon Law Commission)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Establishes new elective share for surviving spouses. Provides
that elective share is percentage of augmented estate based on
number of years of marriage.
Describes assets to be considered by court in establishing
augmented estate. Establishes priorities for sources of payment
of elective share. Creates procedure for filing motion or
petition seeking payment of elective share.
A BILL FOR AN ACT
Relating to elective share of surviving spouse; creating new
provisions; amending ORS 116.133; and repealing ORS 114.105,
114.115, 114.125, 114.135, 114.145, 114.155 and 114.165.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 to 24 of this 2007 Act are added to
and made a part of ORS chapter 114. + }
{ +
DEFINITIONS + }
SECTION 2. { + Definitions. For purposes of sections 2 to 24
of this 2007 Act:
(1) 'Power' or 'power of appointment' includes a power to
designate the beneficiary under a beneficiary designation.
(2) 'Property' includes rights subject to a beneficiary
designation.
(3) 'Transfer' includes:
(a) An exercise or release of a presently exercisable general
power of appointment held by the decedent, as described in
section 14 (6) of this 2007 Act;
(b) A lapse at death of a presently exercisable general power
of appointment held by the decedent, as described in section 14
(6) of this 2007 Act;
(c) An exercise, release or lapse of a general power of
appointment that the decedent created in the decedent; and
(d) An exercise, release or lapse of a general power of
appointment that the decedent conferred on another person as
described in section 15 (2)(c) of this 2007 Act. + }
{ +
ELECTIVE SHARE + }
SECTION 3. { + Elective share generally. (1) If a decedent is
domiciled in this state on the decedent's date of death, and the
decedent is survived by a spouse, the surviving spouse of the
decedent may elect to receive the elective share provided by
sections 2 to 24 of this 2007 Act.
(2) Any amounts received under ORS 114.015 are in addition to
the elective share provided for in sections 2 to 24 of this 2007
Act.
(3) If a decedent dies domiciled outside this state, any right
of a surviving spouse of the decedent to take an elective share
in property in this state is governed by the law of the
decedent's domicile at death. + }
SECTION 4. { + Amount of elective share. (1) Except as
otherwise provided in sections 2 to 24 of this 2007 Act, the
amount of the elective share is equal to a percentage of the
augmented estate of the deceased spouse as provided in this
section. Properties and assets included in the augmented estate
shall be determined as provided in sections 2 to 24 of this 2007
Act. + }
{ + (2) The elective share of a surviving spouse is
determined by the length of time the spouse and decedent were
married to each other, in accordance with the following
schedule: + }
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
IfTheeelective-share
and the spouse percentage is:
were married to
each other: + }
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
Less than 2 ye5%sof the augmented estate + }
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
2 years but less
than 3 years7% of the augmented estate
3 years but less
than 4 years9% of the augmented estate
4 years but less
than 5 years11% of the augmented estate
5 years but less
than 6 years13% of the augmented estate
6 years but less
than 7 years15% of the augmented estate
7 years but less
than 8 years17% of the augmented estate
8 years but less
than 9 years19% of the augmented estate
9 years but less
than 10 year21% of the augmented estate
10 years but less
than 11 year23% of the augmented estate
11 years but less
than 12 year25% of the augmented estate
12 years but less
than 13 year27% of the augmented estate
13 years but less
than 14 year29% of the augmented estate
14 years but less
than 15 year31% of the augmented estate + }
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
15 years or m33% of the augmented estate + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
SECTION 5. { + Payment of elective share. In determining
whether any payment is required to a surviving spouse in
satisfaction of the elective share provided for in sections 2 to
24 of this 2007 Act, the court shall consider the values of the
decedent's probate estate, the decedent's nonprobate estate and
the decedent's nonprobate transfers to the surviving spouse. If
the court determines that the decedent's nonprobate transfers to
the surviving spouse do not satisfy the amount of the elective
share, any additional amount required to satisfy the elective
share shall be paid out of the decedent's probate estate and the
decedent's nonprobate estate in the manner provided by section 21
of this 2007 Act. + }
SECTION 6. { + Waiver of right to elect and other rights. (1)
The right of election under sections 2 to 24 of this 2007 Act may
be waived, wholly or partially, before or after marriage by a
written contract, agreement or waiver signed by the surviving
spouse.
(2) A surviving spouse's waiver under this section is not
enforceable if the surviving spouse proves that the surviving
spouse did not execute the waiver voluntarily.
(3) A surviving spouse's waiver under this section is not
enforceable if the surviving spouse proves that the waiver was
unconscionable when the waiver was executed and that before
execution of the waiver the surviving spouse:
(a) Was not provided a fair and reasonable disclosure of the
property or financial obligations of the decedent;
(b) Did not voluntarily and expressly waive, in writing, any
right to disclosure of the property or financial obligations of
the decedent beyond the disclosure provided; and
(c) Did not have, or reasonably could not have had, an adequate
knowledge of the property or financial obligations of the
decedent.
(4) The court shall decide whether a waiver is unconscionable
under subsection (3) of this section as a matter of law.
(5) Unless specifically provided otherwise, a written agreement
that waives all rights in the property or estate of a present or
prospective spouse, using the phrase 'all rights' or other
equivalent language, or a complete property settlement entered
into after or in anticipation of separation or divorce is a
waiver of all rights to an elective share under sections 2 to 24
of this 2007 Act by each spouse in the property of the other and
a renunciation by each of all benefits that would otherwise pass
to each spouse from the other by intestate succession or by
virtue of any will executed before the waiver or property
settlement. + }
SECTION 7. { + Who may exercise right of election. (1) The
right of election may be personally exercised by a surviving
spouse, or may be exercised on the surviving spouse's behalf by a
conservator, guardian or agent under the authority of a power of
attorney. If the surviving spouse dies before the election is
exercised, the right of election may be exercised by a personal
representative for the estate of that spouse.
(2) An election under sections 2 to 24 of this 2007 Act must be
made by filing a motion or petition within the time specified in
section 24 of this 2007 Act, whether the election is made by the
surviving spouse or by another person under the provisions of
this section. + }
SECTION 8. { + Exercise of elective share by Department of
Human Services. (1) Except as provided in this section, the
Department of Human Services may exercise the right of election
under sections 2 to 24 of this 2007 Act on behalf of a surviving
spouse if the department has a claim against the surviving spouse
for amounts paid to the surviving spouse as public assistance, as
defined in ORS 411.010, or for amounts paid for the care and
maintenance of the surviving spouse in a state institution as
described in ORS 179.610 to 179.770.
(2) Notwithstanding section 6 of this 2007 Act, the surviving
spouse may not waive the right of election under sections 2 to 24
of this 2007 Act if the Department of Human Services has a claim
against the surviving spouse for amounts paid to the surviving
spouse as public assistance, as defined in ORS 411.010, or for
amounts paid for the care and maintenance of the surviving spouse
in a state institution as described in ORS 179.610 to 179.770.
(3) The Department of Human Services may not exercise the right
of election on behalf of a surviving spouse pursuant to the
provisions of this section if:
(a) The decedent established a special needs trust as described
in 42 U.S.C. 1396p(d)(4), as in effect on the effective date of
this 2007 Act, for the benefit of the surviving spouse;
(b) The decedent funded the trust with an amount that equals or
exceeds the amount that the surviving spouse would be entitled to
as an elective share under sections 2 to 24 of this 2007 Act; and
(c) The trust names the Department of Human Services as the
beneficiary of all amounts remaining in the trust at the time of
the surviving spouse's death necessary to pay any claim of the
department for amounts paid to the surviving spouse as public
assistance, as defined in ORS 411.010, or for amounts paid for
the care and maintenance of the surviving spouse in a state
institution as described in ORS 179.610 to 179.770.
(4) If a decedent established a special needs trust for a
surviving spouse that otherwise meets the requirements of
subsection (3) of this section, but funded the trust with an
amount that was less than the amount that the surviving spouse
would be entitled to as an elective share under sections 2 to 24
of this 2007 Act, the Department of Human Services may exercise
the right of election on behalf of the surviving spouse but the
payment to the surviving spouse as an elective share may not
exceed an amount equal to the difference between the amount that
the surviving spouse would be entitled to as an elective share
and the amount with which the trust was funded. + }
{ +
AUGMENTED ESTATE + }
{ +
(Generally) + }
SECTION 9. { + Augmented estate. (1) Except as otherwise
provided in sections 2 to 24 of this 2007 Act, the augmented
estate consists of all of the following property, whether real or
personal, movable or immovable, tangible or intangible, wherever
situated:
(a) The decedent's probate estate as described in section 12 of
this 2007 Act.
(b) The decedent's nonprobate estate as described in sections
13 to 19 of this 2007 Act.
(c) The decedent's nonprobate transfers to the surviving
spouse, as described in section 20 of this 2007 Act.
(2) The value attributable to any property included in the
augmented estate under sections 2 to 24 of this 2007 Act must be
reduced by the amount of all enforceable claims against the
property.
(3) The value attributable to any property included in the
augmented estate may include the present value of any present or
future interest and the present value of amounts payable under
any trust, life insurance settlement option, annuity contract,
public or private pension, disability compensation, death benefit
or retirement plan, or any similar arrangement, exclusive of the
federal Social Security Act. + }
SECTION 10. { + Exclusions from augmented estate. (1) The
augmented estate does not include any value attributable to
future enhanced earning capacity of either spouse.
(2) The augmented estate does not include any property that was
irrevocably transferred before or after the death of the decedent
spouse with the written joinder or written consent of the
surviving spouse. For purposes of this subsection, consent by the
surviving spouse to split-gift treatment under the federal gift
tax laws does not constitute consent to a transfer made by the
decedent. + }
SECTION 11. { + Effect of separation. If the decedent and the
surviving spouse were living apart at the time of the decedent's
death, whether or not there was a judgment of legal separation,
the court may deny any right to elect against the will or may
reduce the elective share to such amount as the court determines
reasonable and proper. In deciding if all or part of the elective
share should be denied, the court shall consider whether the
marriage was a first or subsequent marriage for either or both of
the spouses, the contribution of the surviving spouse to the
property of the decedent in the form of services or transfers of
property, the length and cause of the separation and any other
relevant circumstances. + }
{ +
(Decedent's Probate Estate) + }
SECTION 12. { + Decedent's probate estate. For purposes of
sections 2 to 24 of this 2007 Act, a decedent's probate estate is
the value of all estate property that is subject to probate and
that is available for distribution after payment of claims and
expenses of administration. A decedent's probate estate includes
all property that could be administered under a small estate
affidavit pursuant to ORS 114.505 to 114.560. + }
{ +
(Decedent's Nonprobate Estate) + }
SECTION 13. { + Decedent's nonprobate estate. For purposes of
sections 2 to 24 of this 2007 Act, a decedent's nonprobate estate
is property described in sections 13 to 19 of this 2007 Act that
is not included in the decedent's probate estate. + }
SECTION 14. { + Decedent's nonprobate estate; property owned
immediately before death. (1) A decedent's nonprobate estate
includes all property over which the decedent immediately before
death held a presently exercisable inter vivos general power of
appointment that could be exercised only by the decedent. The
amount included in the decedent's nonprobate estate under the
provisions of this subsection is the value of the property that
is transferred upon the death of the decedent to any person other
than the decedent's estate or surviving spouse or that is
transferred for the benefit of any person other than the
decedent's estate or surviving spouse. The amount included in the
decedent's nonprobate estate under the provisions of this
subsection is not affected by the manner in which the transfer
occurs.
(2) A decedent's nonprobate estate includes the decedent's
fractional interest in property held by the decedent in any form
of survivorship tenancy immediately before the death of the
decedent. The amount included in the decedent's nonprobate estate
under the provisions of this subsection is the value of the
decedent's fractional interest, to the extent the fractional
interest passes by right of survivorship at the decedent's death
to a surviving tenant other than the decedent's surviving spouse.
For the purposes of this subsection, the decedent's fractional
interest in property held in a survivorship tenancy is determined
by multiplying the value of the property by a fraction the
numerator of which is one and the denominator of which is one
plus the number of tenants who survive the decedent.
(3) A decedent's nonprobate estate includes the decedent's
ownership interest in property or accounts held immediately
before death under a payable on death designation, under a
transfer on death registration or in coownership registration
with a right of survivorship. The amount included in the
decedent's nonprobate estate under the provisions of this
subsection is the value of the decedent's ownership interest, to
the extent the decedent's ownership interest passed at the
decedent's death to any person other than the decedent's estate
or surviving spouse or for the benefit of any person other than
the decedent's estate or surviving spouse.
(4) A decedent's nonprobate estate includes the net cash
surrender value of an insurance policy on the life of the
decedent, including accidental death benefits, if immediately
before death the decedent owned the insurance policy or held a
presently exercisable general power of appointment over the
policy or its proceeds that could be exercised only by the
decedent. The net cash surrender value of an insurance policy is
included in the nonprobate estate only if all or part of the
proceeds of the policy were payable at the decedent's death to
any person other than the decedent's estate or surviving spouse
or for the benefit of any person other than the decedent's estate
or surviving spouse. The net cash surrender value of an insurance
policy is determined immediately before the death of the decedent
for the purposes of this subsection.
(5) A decedent's nonprobate estate includes any property that
the decedent could have acquired by revocation of a revocable
trust or other transfer of property, without regard to whether
the revocation was required to be made by the decedent alone or
in conjunction with other persons.
(6) A general power of appointment is presently exercisable for
purposes of this section if before death the decedent could have
exercised the power to create a present or future interest in the
decedent, in the decedent's creditors, in the decedent's estate
or in creditors of the decedent's estate. A power of appointment
is presently exercisable even though the decedent lacks capacity
to exercise the power. + }
SECTION 15. { + Decedent's nonprobate estate; property
transferred during marriage with interest retained by decedent.
(1) A decedent's nonprobate estate includes property transferred
by the decedent during marriage by means of an irrevocable
transfer under which the decedent retains the right to the
possession or enjoyment of the property, or retains the right to
the income from the property, to the extent that the decedent's
right terminates on or after the decedent's death. The amount
included in the decedent's nonprobate estate under the provisions
of this subsection is:
(a) The value of those parts of the property over which the
decedent retained the right to possession or enjoyment, to the
extent those parts of the property pass outside probate to or for
the benefit of any person other than the decedent's estate or
surviving spouse; and
(b) The value of those parts of the property from which the
decedent retained the right to receive income, including but not
limited to a right to payments under a commercial or private
annuity, an annuity trust, a unitrust or a similar arrangement,
to the extent those parts of the property pass outside probate to
or for the benefit of any person other than the decedent's estate
or surviving spouse.
(2) A decedent's nonprobate estate includes property
transferred by the decedent during marriage by means of a
transfer under which the decedent creates a power over income or
property to or for the benefit of the decedent, creditors of the
decedent, the decedent's estate or creditors of the decedent's
estate, if:
(a) The power is exercisable by the decedent alone;
(b) The power is exercisable by the decedent in conjunction
with any other person; or
(c) The power is exercisable by a person who does not have a
substantial beneficial interest in the property or income that
would be adversely affected by the exercise or nonexercise of the
power. For purposes of this paragraph, a person who has a general
power of appointment over the property or income has a beneficial
interest in the property or income.
(3) The following amounts are included in the decedent's
nonprobate estate under the provisions of subsection (2) of this
section to the extent that the power created by the decedent is
exercisable at the decedent's death to or for the benefit of any
person other than the decedent's surviving spouse or to the
extent that the property is transferred at the decedent's death
to or for the benefit of any person other than the decedent's
estate or surviving spouse:
(a) If the decedent creates a power over property, the value of
any property subject to the power is included in the decedent's
nonprobate estate.
(b) If the decedent creates a power over income, the value of
the property that produces the income is included in the
decedent's nonprobate estate.
(c) If the decedent creates a power over both income and
property, the greater of the amount determined under paragraph
(a) of this subsection and the amount determined under paragraph
(b) of this subsection.
(4) Subsection (2) of this section applies only to transfers of
property made by the decedent on or after January 1, 2008. + }
SECTION 16. { + Decedent's nonprobate estate; property
transferred within two years of death; termination of right,
interest or power. (1) A decedent's nonprobate estate includes
property that passed during marriage and during the two-year
period immediately before the decedent's death by means of the
termination of a right to property, the termination of an
interest in property or the termination of a power over property,
if the property would have been included in the decedent's
nonprobate estate under section 14 (1) to (4) or 15 of this 2007
Act had the transfer occurred at the time of the decedent's
death.
(2) The amount included in the decedent's nonprobate estate
under the provisions of subsection (1) of this section is the
value of the property that would have been included under section
14 (1) to (4) or 15 of this 2007 Act determined as of the time
that the right, interest or power terminated. Amounts under
subsection (1) of this section are included in the decedent's
nonprobate estate only to the extent that the property passed
upon termination to or for the benefit of any person other than
the decedent or the decedent's estate, spouse or surviving
spouse.
(3) For purposes of this section:
(a) A termination of a right or interest in property occurs
when the right or interest is terminated by the terms of the
instrument that governs the right or interest, or when the
decedent transferred or relinquished the right or interest.
(b) Except as provided in paragraph (c) of this subsection, a
termination of a power over property occurs when the power
terminates by exercise, release, lapse, default or otherwise.
(c) A termination of a power described in section 14 (1) of
this 2007 Act occurs only when the power terminates by exercise
or release of the power. + }
SECTION 17. { + Decedent's nonprobate estate; insurance
premiums. (1) Subject to subsection (2) of this section, a
decedent's nonprobate estate includes the amount of life
insurance premiums paid by decedent during marriage and during
the two-year period immediately before the decedent's death on a
life insurance policy that was acquired by the decedent within
two years before the decedent's death if the proceeds of the
policy were payable at the decedent's death to any person other
than the decedent's estate or surviving spouse, or for the
benefit of any person other than the decedent's estate or
surviving spouse.
(2) The amount included in a decedent's nonprobate estate under
this section is limited to the amount by which insurance premiums
paid by the decedent during the period described in subsection
(1) of this section exceed the cash surrender value of the
policy. + }
SECTION 18. { + Decedent's nonprobate estate; other property
transferred within two years of death. (1) The decedent's
nonprobate estate includes property that passed during marriage
and during the two-year period immediately before the decedent's
death by means of any other transfer of property, to the extent
not otherwise included in the augmented estate, made to or for
the benefit of a person other than the decedent's surviving
spouse.
(2) Except as provided in subsection (3) of this section, the
amount included in the decedent's nonprobate estate under the
provisions of this section is the value of the transferred
property to the extent that the aggregate transfers to any one
donee during either of the two years immediately before the
decedent's death exceeds the amount that qualifies for exclusion
from federal gift tax under 26 U.S.C. 2503 (b) or (c), as in
effect on the effective date of this 2007 Act.
(3) The amount included in the decedent's nonprobate estate
under the provisions of this section does not include any
transfer of property for medical or education expenses to the
extent the transfer qualifies for exclusion from federal gift tax
under 26 U.S.C. 2503 (e), as in effect on the effective date of
this 2007 Act. + }
SECTION 19. { + Decedent's nonprobate estate; excluded
property. (1) Except for insurance premiums included in the
decedent's estate under section 17 of this 2007 Act, a decedent's
nonprobate estate does not include any property for which the
decedent received full consideration.
(2) A decedent's nonprobate estate does not include any
insurance policy maintained by the decedent in compliance with a
court order. + }
{ +
(Decedent's Nonprobate Transfers to Spouse) + }
SECTION 20. { + Decedent's nonprobate transfers to surviving
spouse. (1) Except as provided in subsection (2) of this section,
the decedent's nonprobate transfers to the decedent's surviving
spouse include all property that passed outside probate at the
decedent's death from the decedent to the surviving spouse by
reason of the decedent's death, including:
(a) The decedent's fractional interest in property held in a
survivorship tenancy, determined in the manner specified in
section 14 (2) of this 2007 Act, to the extent that the
decedent's fractional interest passed to the surviving spouse as
surviving tenant;
(b) The decedent's ownership interest in property or accounts
held in coownership registration with the right of survivorship,
to the extent that the decedent's ownership interest passed to
the surviving spouse as surviving coowner; and
(c) All other property that would have been included in the
decedent's nonprobate estate under sections 13 to 19 of this 2007
Act had it passed to or for the benefit of a person other than
the decedent's spouse.
(2) The decedent's nonprobate transfers to the decedent's
surviving spouse do not include any property passing to the
surviving spouse under the federal Social Security Act. + }
{ +
PAYMENT OF ELECTIVE SHARE + }
SECTION 21. { + Priority of sources from which elective share
payable. (1) The following amounts are applied first to satisfy
an elective share amount and to reduce or eliminate any
contributions due from the decedent's probate estate and
recipients of the decedent's nonprobate transfers to others:
(a) The amount included in the decedent's probate estate under
section 12 of this 2007 Act that passes to the surviving spouse
by testate or intestate succession.
(b) The amount of all of the decedent's nonprobate transfers to
the surviving spouse described in section 20 of this 2007 Act.
(2) If after application of the amounts specified in subsection
(1) of this section the elective share amount is not fully
satisfied, the following amounts shall be applied to the extent
necessary to satisfy the balance of the elective share amount:
(a) Amounts included in the decedent's probate estate.
(b) Amounts included in the decedent's nonprobate estate under
sections 2 to 24 of this 2007 Act except those amounts included
under sections 16 and 18 of this 2007 Act.
(3) Amounts applied against the unsatisfied balance of an
elective share amount under subsection (2) of this section shall
be collected from both the probate and nonprobate estates of the
decedent in a manner that ensures that the probate and nonprobate
estates bear proportionate burdens for the amounts necessary to
pay the elective share amount.
(4) Amounts applied against the unsatisfied balance of an
elective share amount under subsection (2) of this section out of
the probate estate of the decedent must be apportioned among all
recipients of the decedent's probate estate in a manner that
ensures that each recipient bears liability for a portion of the
payment that is proportionate to the recipient's interest in the
decedent's probate estate. Amounts applied against the
unsatisfied balance of an elective share amount under subsection
(2) of this section out of the nonprobate estate of the decedent
must be apportioned among all recipients of the decedent's
nonprobate estate in a manner that ensures that each recipient
bears liability for a portion of the payment that is
proportionate to the recipient's interest in the decedent's
nonprobate estate.
(5) If after application of the amounts specified in
subsections (1) and (2) of this section the elective share amount
is not fully satisfied, the remaining portion of the decedent's
nonprobate estate must be applied to satisfy the balance of the
elective share amount in a manner that ensures that each
recipient of the remaining portion of the decedent's nonprobate
estate bears liability for a portion of the payment out of the
nonprobate estate that is proportionate to the recipient's
interest in the nonprobate estate.
(6) All apportionments required under this section between the
probate and nonprobate estates of the decedent and between the
recipients of those estates shall be based on the assets of each
estate that are subject to distribution by the court under the
provisions of sections 2 to 24 of this 2007 Act. + }
SECTION 22. { + Liability of recipients of decedent's
nonprobate estate. (1) The following recipients of the decedent's
nonprobate estate are the only persons who may be required to
make a proportional contribution toward the satisfaction of the
surviving spouse's elective share under the provisions of
sections 2 to 24 of this 2007 Act:
(a) An original recipient of the decedent's nonprobate estate.
(b) A person who has received as a gift all or part of the
decedent's nonprobate estate from an original recipient of the
property, to the extent the person has the property or its
proceeds.
(c) A person who received the proceeds of a policy whose
premiums were included in the decedent's nonprobate estate under
section 17 of this 2007 Act.
(2) A recipient of the decedent's nonprobate estate who is
required to make a proportional contribution toward the
satisfaction of the surviving spouse's elective share may elect
to make the contribution by returning property determined to be
adequate to satisfy the recipient's obligation or by paying a sum
of money equal to the value of that property.
(3) If any provision of sections 2 to 24 of this 2007 Act is
preempted by federal law with respect to a payment, an item of
property or any other benefit included in the decedent's
nonprobate estate, a person who, not for value, receives the
payment, item of property, or any other benefit is obligated to
return the payment, item of property or benefit, or is personally
liable for the amount of the payment or the value of that item of
property or benefit to the person who would have been entitled to
the payment, item of property or benefit if that provision was
not preempted. + }
SECTION 23. { + Protection of payors and other third parties.
(1) Except as provided in subsection (2) of this section, a
person is not liable for having made a payment or transferred an
item of property or other benefit pursuant to an instrument after
having requested and received satisfactory proof of death, or for
having taken any other action in good faith reliance on the
validity of an instrument, even though the payment, item of
property or other benefit is part of a decedent's nonprobate
estate under the provisions of sections 2 to 24 of this 2007 Act.
(2) A person is liable for making a payment or transferring an
item of property or other benefit included in the decedent's
nonprobate estate under the provisions of sections 2 to 24 of
this 2007 Act if the payment or delivery is made after the person
receives written notice from the spouse or the spouse's
representative that indicates that the surviving spouse or
representative has filed a motion or petition for the elective
share under section 24 of this 2007 Act or that the surviving
spouse or representative intends to file a motion or petition
within the time allowed in section 24 of this 2007 Act.
(3) Notice under subsection (2) of this section must be mailed
by registered or certified mail, return receipt requested, or be
served in the same manner as a summons in a civil action. The
person receiving the notice may deposit any money or property
held by the person with the court having jurisdiction of the
probate proceedings relating to the decedent's estate or, if no
proceedings have been commenced, with the circuit court for the
county of the decedent's residence. If motion or petition is
filed in the court within the specified time under section 24 of
this 2007 Act, the court shall order disbursement of the money or
property to the appropriate beneficiary. Deposit of the money or
property with the court discharges the person making the deposit
from all claims for the money or property. + }
{ +
PROCEDURE + }
SECTION 24. { + Proceedings for elective share; time limit.
(1) If any property of a decedent is subject to probate, the
surviving spouse may claim the elective share only after the
appointment of a personal representative. The election must be
made by filing a motion in the proceeding and serving a copy of
the motion on the personal representative, on all persons who
would be entitled to receive information under ORS 113.145 and on
all distributees and recipients of portions of the augmented
estate whose interests will be adversely affected by the taking
of the elective share. The motion must be filed within 120 days
after the appointment of the personal representative, or 30 days
after the date of the filing of the inventory, whichever is
later.
(2) If no property of a decedent is subject to probate, the
surviving spouse may claim the elective share by filing a
petition in a circuit court. Venue for the proceeding is as
provided in ORS 113.015. A copy of the petition must be served on
all persons who would be entitled to receive information under
ORS 113.145 and on all distributees and recipients of portions of
the augmented estate whose interests will be adversely affected
by the taking of the elective share. Except as provided in
subsection (3) of this section, a petition under this section
must be filed within nine months after the date of the decedent's
death. The petition must contain an inventory and valuation of
the decedent's nonprobate estate. The fee for filing a petition
under this subsection shall be in the amount prescribed in ORS
21.310, based on the value of the nonprobate estate.
(3) A surviving spouse may withdraw a motion for an election
filed under subsection (1) of this section at any time before the
court enters an order granting the motion. A surviving spouse may
withdraw a petition for an elective share filed under subsection
(2) of this section at any time before entry of a judgment on the
petition.
(4) After notice and hearing the court shall determine the
elective share amount, and shall order its payment pursuant to
the priorities established under section 21 of this 2007 Act. If
it appears that property has not come into the possession of the
personal representative, or has been distributed by the personal
representative, the court nevertheless shall fix the liability of
any person who has any interest in the fund or property or who
has possession thereof, whether as trustee or otherwise. + }
{ +
MISCELLANEOUS + }
SECTION 25. ORS 116.133 is amended to read:
116.133. (1) If the will expresses an order of abatement, or
the testamentary plan or the express or implied purpose of the
devise would be defeated by the order of abatement stated in
subsection (2) of this section, the shares of the distributees
abate as may be found necessary to give effect to the intention
of the testator.
(2) Except as provided in ORS 112.405 as to the shares of
pretermitted children, and in { - ORS 114.105 as to the share
of the surviving spouse who elects to take against the will - }
{ + sections 2 to 24 of this 2007 Act relating to the elective
share of the surviving spouse + }, shares of distributees abate
without any preference or priority as between real and personal
property in the following order:
(a) Property not disposed of by the will.
(b) Residuary devises.
(c) General devises.
(d) Specific devises.
(3) A general devise charged on any specific property or fund
is considered, for purposes of abatement, property specifically
devised to the extent of the value of the thing on which it is
charged. Upon the failure or insufficiency of the thing on which
it is charged, it is considered a general devise to the extent of
the failure or insufficiency.
(4) Abatement within each classification is in proportion to
the amounts of property each of the distributees would have
received had full distribution of the property been made in
accordance with the terms of the will.
(5) Persons to whom the will gives tangible personal property
not used in trade, agriculture or other business are not required
to contribute from that property unless the particular devise
forms a substantial amount of the total estate and the court
specifically orders contribution because of the devise.
(6) When the subject matter of a preferred devise is sold or
used incident to administration, abatement shall be achieved by
appropriate adjustments in, or contribution from, other interests
in the remaining assets.
SECTION 26. { + Sections 2 to 24 of this 2007 Act apply only
to the surviving spouses of decedents who die on or after the
effective date of this 2007 Act. Notwithstanding the repeal of
ORS 114.105, 114.115, 114.125, 114.135, 114.145, 114.155 and
114.165 by section 28 of this 2007 Act, the rights of a surviving
spouse of a decedent who dies before the effective date of this
2007 Act shall continue to be governed by the law in effect
immediately before the effective date of this 2007 Act. + }
SECTION 27. { + A written contract, agreement or waiver
entered into before the effective date of this 2007 Act, whether
prenuptial or post-nuptial, that waives in whole or in part the
elective share of a surviving spouse shall be effective as a
waiver under section 6 of this 2007 Act unless a court determines
that the agreement, contract or waiver was not executed
voluntarily or was unconscionable under the provisions of section
6 of this 2007 Act. Section 6 (5) of this 2007 Act applies to
contracts, agreements or waivers entered into before the
effective date of this 2007 Act. + }
SECTION 28. { + ORS 114.105, 114.115, 114.125, 114.135,
114.145, 114.155 and 114.165 are repealed. + }
SECTION 29. { + The unit and section captions used in this
2007 Act are provided only for the convenience of the reader and
do not become part of the statutory law of this state or express
any legislative intent in the enactment of this 2007 Act. + }
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