75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
HA to HB 3077
LC 621/HB 3077-2
HOUSE AMENDMENTS TO
HOUSE BILL 3077
By COMMITTEE ON JUDICIARY
April 14
On page 1 of the printed bill, line 2, after 'ORS' delete the
rest of the line and insert '114.545, 114.555 and 116.133;'.
In line 3, after '114.165' insert '; and prescribing an
effective date'.
Delete lines 8 through 11.
In line 15, delete '3' and insert '2'.
In line 19, delete '21' and insert '4'.
In line 20, delete '21' and insert '4'.
In line 23, delete 'section 21' and insert 'sections 2 to 22'.
Delete lines 29 and 30 and insert:
' { + SECTION 3. + } Amount of elective share. (1) Except as
otherwise provided in sections 2 to 22 of this 2009 Act, the
amount of the elective share is a dollar amount determined by
multiplying the augmented estate by the percentage provided in
this section. All properties included in the augmented estate
shall be determined as provided in sections 2 to 22 of this 2009
Act. A court of this state has authority to order distribution
under sections 2 to 22 of this 2009 Act of all properties
included in the augmented estate under sections 2 to 22 of this
2009 Act.'.
On page 2, delete lines 1 through 3.
After line 37, insert:
' { + SECTION 4. + } { + Manner of making election. (1) A
surviving spouse may claim the elective share only by:
' (a) Filing a petition for the appointment of a personal
representative for the estate of the deceased spouse, and a
motion for the exercise of the election as described in paragraph
(b) of this subsection, within nine months after the spouse dies.
' (b) Filing a motion for the exercise of the election in a
probate proceeding commenced for the estate of the deceased
spouse under ORS 113.035. The motion must be filed not later than
nine months after the death of the decedent. A copy of the motion
must be served 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 known to the surviving spouse who can be located with
reasonable efforts. A surviving spouse may withdraw a motion for
an election filed under this subsection at any time before the
court enters an order granting the motion.
' (c) Filing a petition for the exercise of the election under
section 21 (1) of this 2009 Act within nine months after the
death of the decedent.
' (2) If a court determines that the elective share is payable,
the court shall determine the amount of the elective share and
shall order its payment pursuant to the priorities established
under section 18 of this 2009 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 property or who has possession thereof, whether
as trustee or otherwise. + } ' .
In line 39, delete 'sections 2 to 22' and insert 'section 3'.
In line 43, before 'surviving' insert 'aggregate value of the'.
On page 3, line 7, after 'proves' insert 'by clear and
convincing evidence'.
In line 9, after 'proves' insert 'by clear and convincing
evidence'.
In line 17, after 'decide' insert 'as a matter of law'.
Delete lines 27 through 32 and insert:
' { + SECTION 7. + } { + Who may exercise right of
election. The elective share may be personally claimed by a
surviving spouse, or may be claimed on the surviving spouse's
behalf by a conservator, guardian or agent under the authority of
a power of attorney. + } ' .
On page 4, line 4, after 'property' insert 'and all
encumbrances on the property'.
After line 12, insert:
' (4) The value attributable to property included in the
augmented estate is equal to the value that would be used for
purposes of federal estate and gift tax laws if the property had
passed without consideration to an unrelated person on the date
that the value of the property is determined for the purposes of
sections 2 to 22 of this 2009 Act.
' (5) In no event may the value of property be included in the
augmented estate more than once.'.
After line 19, insert:
' (3) The augmented estate does not include any real property
that is community property under the laws of the jurisdiction
where the property is located.'.
In line 34, delete 'is' and insert 'consists of the'.
On page 5, delete lines 11 through 14 and insert:
' (3) A decedent's nonprobate estate includes any property
owned by the decedent immediately before death for which the
decedent had the power to designate a beneficiary.
' (4) A decedent's nonprobate estate includes any property that
immediately before death the decedent could have acquired by the
exercise of a revocation, without regard to whether the
revocation was required to be made by the decedent alone or in
conjunction with other persons.'.
In line 15, delete '(4)' and insert '(5)'.
In line 25, after 'property' insert 'to a donee' and delete
'any one' and insert 'the'.
Delete lines 40 through 42 and insert:
' (a) All property of the spouse other than decedent's probate
transfers to the surviving spouse under section 16 of this 2009
Act, as determined on the date of the decedent's death.'.
On page 6, delete lines 4 through 7 and insert:
' (2)(a) For the purpose of establishing the value of the
surviving spouse's estate under this section, the estate includes
100 percent of the corpus of any trust or portion of a trust from
which all income must be distributed to or for the benefit of the
surviving spouse during the life of the surviving spouse, and for
which the surviving spouse has a general power of appointment
that the surviving spouse, acting alone, may exercise, during the
surviving spouse's lifetime or at death of the surviving spouse,
to or for the benefit of the surviving spouse or the surviving
spouse's estate.
' (b) For the purpose of establishing the value of the
surviving spouse's estate under this section, the estate includes
50 percent of the corpus of a trust or portion of a trust, if all
income from the trust or portion of a trust must be distributed
to or for the benefit of the surviving spouse during the life of
the surviving spouse and the trust principal may be accessed only
by the trustee or the spouse and only for the purpose of
providing for the health, education, support or maintenance of
the spouse.
' (c) For the purpose of establishing the value of the
surviving spouse's estate under this section, the estate includes
35 percent of the corpus of a trust or portion of a trust if all
income from the trust or portion of a trust must be distributed
to or for the benefit of the surviving spouse during the life of
the surviving spouse and neither the trustee nor the spouse has
the power to distribute trust principal to or for the benefit of
the surviving spouse or any other person during the spouse's
lifetime.
' (d) For the purposes of this section, all amounts distributed
to a surviving spouse from a unitrust that meets the requirements
of ORS 129.225 (4) shall be considered income.'.
In line 15, after 'property' insert 'to a donee' and delete
'any one' and insert 'the'.
On page 7, line 12, delete 'an elective share amount' and
insert 'the dollar amount of the elective share'.
In line 29, delete 'burdens' and insert 'liability'.
Delete lines 39 through 44 and insert:
' (5) If after application of the amounts specified in
subsections (1) and (2) of this section the elective share amount
is not fully satisfied, amounts included in the decedent's
nonprobate estate under section 13 of this 2009 Act, other than
transfers to charitable institutions, must be applied next to
satisfy the elective share amount. Amounts must be applied under
this subsection in a manner that ensures that each recipient of a
transfer bears liability for a portion of the repayment that is
proportionate to the recipient's share of all noncharitable
transfers included in the decedent's nonprobate estate under
section 13 of this 2009 Act.
' (6) If after application of the amounts specified in
subsections (1), (2) and (5) of this section the elective share
amount is not fully satisfied, amounts included in the decedent's
nonprobate estate under section 13 of this 2009 Act that were
transfers to charitable institutions must be applied next to
satisfy the elective share amount. Transfers to charitable
institutions may not be applied to satisfy the elective share
amount under this subsection if making that application would
disqualify the transfer from a deduction under federal gift tax
laws or regulations. Amounts must be applied under this
subsection in a manner that ensures that each recipient of a
transfer bears liability for a portion of the repayment that is
proportionate to the recipient's share of all charitable
transfers applied under this subsection.'.
In line 45, delete '(6)' and insert '(7)'.
On page 8, after line 3, insert:
' (8) In any proceeding described in section 4 of this 2009
Act, the court may allocate the cost of storing and maintaining
property included in the augmented estate pending distribution of
the property.'.
Delete lines 23 through 45 and insert:
' { + SECTION 20. + } { + Protective order. (1) If a
surviving spouse has filed a motion or petition described in
section 4 of this 2009 Act, the surviving spouse or any person
who has received any part of the decedent's probate or nonprobate
estate may request, at any time after the filing, that the court
issue a protective order. The protective order shall prohibit or
impose conditions on the transfer of property included in the
augmented estate. The protective order may be served on any
person holding property included in the augmented estate.
' (2) Upon the filing of a motion or petition under section 4
of this 2009 Act, any person who has received any part of the
decedent's probate or nonprobate estate and who is required to
make a contribution toward the satisfaction of the elective share
may file a motion or petition with the court requesting a
determination of the amount of the person's proportionate
contribution toward the satisfaction of the elective share. Upon
that determination being made, the person may deposit with the
court the amount so determined in the form of money or a bond or
other security. The deposit discharges the person from all claims
relating to the satisfaction of the elective share. In lieu of
deposit with the court under this subsection the court may
require that the money or security be deposited with a person
designated by the court.
' (3) If a surviving spouse has filed a motion or petition
described in section 4 of this 2009 Act, and a notice of pendency
of action under ORS 93.740 is recorded, a temporary restraining
order is issued under ORCP 79, or provisional process is issued
under ORCP 83, an owner of the property that is subject to the
notice, order or process may seek relief from the notice, order
or process by providing a bond or other security to the court in
such amount as the court may determine adequate to satisfy the
person's proportionate contribution toward the satisfaction of
the elective share. + } ' .
On page 9, delete lines 3 through 31 and insert:
' { + SECTION 21. + } { + Proceedings to claim elective
share. (1) A surviving spouse may claim the elective share by
filing a petition for the exercise of the election in a circuit
court within the time allowed by section 4 (1)(c) of this 2009
Act. 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
known to the surviving spouse who can be located with reasonable
efforts. The fee for filing a petition under this subsection
shall be the amount prescribed in ORS 21.310, based on the value
of the nonprobate estate. The Oregon Rules of Civil Procedure
apply to proceedings under this section. Any party to a
proceeding under this section may request that the pleadings and
records in the proceeding be sealed.
' (2) A surviving spouse may withdraw a petition filed under
this section at any time before entry of a judgment on the
petition.
' (3) If a probate proceeding is commenced for the estate of
the deceased spouse under ORS 113.035 either before or after a
petition is filed under this section, the court shall consolidate
the proceedings under this section with the probate
proceedings. + } ' .
After line 42, insert:
' { + SECTION 23. + } ORS 114.545 is amended to read:
' 114.545. (1) The affiant:
' (a) Shall take control of the property of the estate coming
into the possession of the affiant.
' (b) Within 30 days after filing the affidavit shall mail,
deliver or cause to be recorded each instrument which the
affidavit states will be mailed, delivered or recorded.
' (c) From and to the extent of the property of the estate,
shall pay or reimburse any person who has paid:
' (A) Expenses described in ORS 115.125 (1)(b) and (c) and
listed in the affidavit;
' (B) Claims listed in the affidavit as undisputed;
' (C) Allowed claims presented to the affiant within the time
permitted by ORS 114.540; and
' (D) Claims which the probate court directs the affiant to
pay.
' (d) Shall pay claims and expenses under paragraph (c) of this
subsection in the order of priority prescribed by ORS 115.125.
' (e) May transfer or sell any vehicle that is part of the
estate before the completion of the period established under ORS
114.555 if the affiant complies with the requirements established
by the Department of Transportation for such purposes under ORS
803.094.
' (f) May convey any real or personal property that is part of
the estate before the completion of the period established under
ORS 114.555, provided that each heir or devisee succeeding to the
interest conveyed joins in the conveyance and that any proceeds
of sale, net of the reasonable expenses of sale and any debt
secured as of the date of the decedent's death by a duly
perfected lien on the property, shall become a part of the estate
subject to ORS 114.505 to 114.560. If the property is a
manufactured structure as defined in ORS 446.561, the affiant
must assign interest in the structure as provided in ORS 446.616.
Any conveyance to a purchaser in good faith and for a valuable
consideration made by the affiant and the heir or devisee
succeeding to the interest conveyed, or made by the heir or
devisee succeeding to the interest conveyed after completion of
the period established under ORS 114.555, conveys the interest
stated in the conveyance free of any interest of the claiming
successors, and the purchaser has no duty with respect to
application of the consideration paid for the conveyance.
' { + (2) If the decedent was married at the time of death
and the decedent's spouse survives the decedent, an affiant may
not sell, transfer or convey any property of the estate, other
than payment of claims, until the expiration of nine months after
the death of the decedent unless the affiant files with the court
a written document signed by the surviving spouse consenting to
the transfer. + }
' { - (2) - } { + (3) + } Any claiming successor to whom
payment, delivery or transfer is made under ORS 114.505 to
114.560 as a person entitled thereto as disclosed in the
affidavit is personally answerable and accountable:
' (a) To the extent of the value of the property received, to
creditors of the estate to the extent such creditors are entitled
to payment under subsection (1) of this section; and
' (b) To any personal representative of the estate of the
decedent thereafter appointed.
' { - (3) - } { + (4) + } The affiant shall cause to be
recorded in the deed records of any county in which real property
belonging to the decedent is situated an affiant or claiming
successor's deed executed in the manner required by ORS chapter
93.
' { - (4) - } { + (5) + } For a manufactured structure as
defined in ORS 446.561 belonging to a decedent and assessed as
personal property, the affiant shall file with the Department of
Consumer and Business Services the necessary information for
recording the successor's interest in the manufactured structure
on an ownership document.
' { + SECTION 24. + } ORS 114.555 is amended to read:
' 114.555. If a personal representative is not appointed within
four months after the filing of the affidavit authorized by ORS
114.515, the interest of the decedent in all of the property
described in the affidavit is transferred to the person or
persons shown by the affidavit to be entitled thereto, and any
other claims against the property are barred { + , + }
except { + :
' (1) + } As provided in ORS 114.540, 114.545 and 114.550 { + ;
and
' (2) For the purposes of a surviving spouse's claim for an
elective share in the manner provided by sections 2 to 22 of this
2009 Act + }.'.
In line 43, delete '23' and insert '25'.
On page 10, delete lines 26 through 38 and insert:
' { + SECTION 26. + } { + Sections 2 to 22 of this 2009 Act
and the amendments to ORS 114.545 and 114.555 by sections 23 and
24 of this 2009 Act apply only to the surviving spouses of
decedents who die on or after the effective date of this 2009
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 2009 Act, the rights of a surviving spouse of a decedent who
dies before the effective date of this 2009 Act shall continue to
be governed by the law in effect immediately before the effective
date of this 2009 Act. + }
' { + SECTION 27. + } { + A written contract, agreement or
waiver entered into before the effective date of this 2009 Act,
whether prenuptial or post-nuptial, that waives in whole or in
part the elective share of a surviving spouse is effective as a
waiver under section 6 of this 2009 Act unless a court determines
that the contract, agreement or waiver is not enforceable under
the standards of section 6 of this 2009 Act. Section 6 (5) of
this 2009 Act applies to contracts, agreements or waivers entered
into before, on or after the effective date of this 2009 Act. + }
' .
In line 39, delete '26' and insert '28'.
In line 41, delete '27' and insert '29'.
After line 43, insert:
'
{ + EFFECTIVE DATE + }
' { + SECTION 30. + } { + This 2009 Act takes effect on
January 1, 2011. + } ' .
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