75th OREGON LEGISLATIVE ASSEMBLY--2009 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 621
A-Engrossed
House Bill 3077
Ordered by the House April 14
Including House Amendments dated April 14
Sponsored by COMMITTEE ON JUDICIARY (at the request of 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.
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.
{ + Takes effect January 1, 2011. + }
A BILL FOR AN ACT
Relating to elective share of surviving spouse; creating new
provisions; amending ORS 114.545, 114.555 and 116.133;
repealing ORS 114.105, 114.115, 114.125, 114.135, 114.145,
114.155 and 114.165; and prescribing an effective date.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 to 22 of this 2009 Act are added to
and made a part of ORS chapter 114. + }
{ +
ELECTIVE SHARE + }
SECTION 2. { + 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 22 of this 2009 Act. An election under sections 2
to 22 of this 2009 Act must be made before the death of the
surviving spouse by the filing of a motion or petition in the
manner described in section 4 of this 2009 Act. If a motion or
petition is filed within the time specified in section 4 of this
2009 Act, and the surviving spouse dies before payment of the
elective share, the personal representative for the estate of the
surviving spouse may take all steps necessary to secure payment
of the elective share under sections 2 to 22 of this 2009 Act.
(2) Any amounts received under ORS 114.015 are in addition to
the elective share provided for in sections 2 to 22 of this 2009
Act.
(3) If a decedent dies while 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 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.
(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.
_______________________________________________________________
{ +
If the deTheeelective-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.
_______________________________________________________________
{ +
L5%sofhthe2augmented estate
2 years but less
than 3 years 7% of the augmented estate
3 years but less
than 4 years 9% of the augmented estate
4 years but less
than 5 years 11% of the augmented estate
5 years but less
than 6 years 13% of the augmented estate
6 years but less
than 7 years 15% of the augmented estate
7 years but less
than 8 years 17% of the augmented estate
8 years but less
than 9 years 19% of the augmented estate
9 years but less
than 10 years 21% of the augmented estate
10 years but less
than 11 years 23% of the augmented estate
11 years but less
than 12 years 25% of the augmented estate
12 years but less
than 13 years 27% of the augmented estate
13 years but less
than 14 years 29% of the augmented estate
14 years but less
than 15 years 31% of the augmented estate
15 years or more 33% of the augmented estate + }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
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. + }
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 section 3 of
this 2009 Act, the court shall consider the values of the
decedent's probate estate, the decedent's nonprobate estate, the
surviving spouse's estate, the decedent's probate transfers to
the surviving spouse and the decedent's nonprobate transfers to
the surviving spouse. If the court determines that the aggregate
value of the surviving spouse's estate, the decedent's probate
transfers to the surviving spouse and 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 18 of this 2009 Act. + }
SECTION 6. { + Waiver of right to elect and other rights. (1)
The right of election under sections 2 to 22 of this 2009 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 by clear and
convincing evidence 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 by clear and
convincing evidence 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 as a matter of law whether a waiver
is unconscionable under subsection (3) of this section.
(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 22
of this 2009 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 written agreement or
property settlement. + }
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. + }
{ +
AUGMENTED ESTATE + }
{ +
(Generally) + }
SECTION 8. { + Augmented estate. (1) Except as otherwise
provided in sections 2 to 22 of this 2009 Act, the augmented
estate consists of all of the following property, whether real or
personal, movable or immovable, or tangible or intangible,
wherever situated:
(a) The decedent's probate estate as described in section 10 of
this 2009 Act.
(b) The decedent's nonprobate estate as described in sections
11 to 13 of this 2009 Act.
(c) The surviving spouse's estate, as described in section 14
of this 2009 Act.
(d) The decedent's probate transfers to the surviving spouse,
as described in section 16 of this 2009 Act.
(e) The decedent's nonprobate transfers to the surviving
spouse, as described in section 17 of this 2009 Act.
(2) The value attributable to any property included in the
augmented estate under sections 2 to 22 of this 2009 Act must be
reduced by the amount of all enforceable claims against the
property and all encumbrances on the property. Any exemption or
deduction that is allowed for the purpose of determining estate
or inheritance taxes on the augmented estate and that is
attributable to the marriage of the decedent and the surviving
spouse inures to the benefit of the surviving spouse as provided
in ORS 116.343 (2).
(3) The value attributable to any property included in the
augmented estate includes 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.
(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. + }
SECTION 9. { + 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.
(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. + }
{ +
(Decedent's Probate Estate) + }
SECTION 10. { + Decedent's probate estate. For purposes of
sections 2 to 22 of this 2009 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. A decedent's
probate estate does not include any property that constitutes a
probate transfer to the decedent's surviving spouse under section
16 of this 2009 Act. + }
{ +
(Decedent's Nonprobate Estate) + }
SECTION 11. { + Decedent's nonprobate estate. For purposes of
sections 2 to 22 of this 2009 Act, a decedent's nonprobate estate
consists of the property described in sections 11 to 13 of this
2009 Act that is not included in the decedent's probate estate
and that does not constitute a probate transfer to the decedent's
surviving spouse. + }
SECTION 12. { + Decedent's nonprobate estate; property owned
immediately before death. (1) 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
by the decedent 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.
(2) 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 or deed, 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.
(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.
(5) A decedent's nonprobate estate does not include the present
value of any life insurance policy payable on the death of the
decedent. + }
SECTION 13. { + Decedent's nonprobate estate; property
transferred within one year of death. (1) The decedent's
nonprobate estate includes property of the decedent not otherwise
included in the decedent's nonprobate estate under section 11 or
12 of this 2009 Act that passed during the decedent's marriage to
the surviving spouse and during the one-year period immediately
before the decedent's death, to or for the benefit of a person
other than the decedent's surviving spouse, whether by means of
transfer or disclaimer.
(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 a donee to the extent that the value of the aggregate
transfers to the donee during the year 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 2009 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 2009 Act.
(4) A decedent's nonprobate estate does not include any
property transferred or disclaimed by the decedent for which the
decedent received fair consideration. + }
{ +
(Surviving Spouse's Estate) + }
SECTION 14. { + Surviving spouse's estate. (1) For purposes
of sections 2 to 22 of this 2009 Act, a surviving spouse's estate
is:
(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.
(b) Property of the spouse transferred within one year before
the death of the decedent spouse, as described in section 15 of
this 2009 Act.
(c) The decedent's probate transfers to the spouse, as
described in section 16 of this 2009 Act.
(d) Any property that would have been included under paragraph
(a) or (c) of this subsection except for the exercise of a
disclaimer by the spouse after the death of the decedent.
(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. + }
SECTION 15. { + Surviving spouse's estate; property
transferred within one year of death. (1) The surviving spouse's
estate includes property of the surviving spouse that passed
during marriage and during the one-year period immediately before
the decedent's death to or for the benefit of a person other than
the decedent spouse, whether by means of transfer or disclaimer.
(2) Except as provided in subsection (3) of this section, the
amount included in the surviving spouse's estate under the
provisions of this section is the value of the transferred
property to a donee to the extent that the value of the aggregate
transfers to the donee during the year 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 2009 Act.
(3) The amount included in the surviving spouse's 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 2009
Act.
(4) A surviving spouse's estate does not include any property
transferred or disclaimed by the surviving spouse for which the
surviving spouse received fair consideration. + }
{ +
(Decedent's Probate Transfers to Spouse) + }
SECTION 16. { + Decedent's probate transfers to surviving
spouse. The decedent's probate transfers to the decedent's
surviving spouse include all estate property that is subject to
probate, that passes to the surviving spouse by testate or
intestate succession, and that is available for distribution to
the surviving spouse after payment of claims and expenses of
administration. + }
{ +
(Decedent's Nonprobate Transfers to Spouse) + }
SECTION 17. { + 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 any
form of survivorship tenancy, determined in the manner specified
in section 12 (1) of this 2009 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;
(c) Insurance proceeds payable to the surviving spouse by
reason of the death of the decedent; and
(d) All other property that would have been included in the
decedent's nonprobate estate under sections 11 to 13 of this 2009
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 18. { + Priority of sources from which elective share
payable. (1) The following amounts are applied first to satisfy
the dollar amount of the elective share 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 surviving spouse's estate as described in section 14 of
this 2009 Act.
(b) The amount of all of the decedent's probate transfers to
the surviving spouse described in section 16 of this 2009 Act.
(c) The amount of all of the decedent's nonprobate transfers to
the surviving spouse described in section 17 of this 2009 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 22 of this 2009 Act except those amounts included
under section 13 of this 2009 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 liability 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, 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.
(7) All apportionments required under this section between the
probate and nonprobate estates of the decedent and among 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 22 of this 2009 Act.
(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. + }
SECTION 19. { + 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 22 of this 2009 Act:
(a) An original recipient of all or part of the decedent's
nonprobate estate.
(b) A person who has received all or part of the decedent's
nonprobate estate for less than fair consideration from an
original recipient of the property, to the extent the person has
the property or proceeds of the property.
(2) A recipient of all or part 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
money equal to the value of that property.
(3) If any provision of sections 2 to 22 of this 2009 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, without fair consideration,
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 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. + }
{ +
PROCEDURE + }
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. + }
SECTION 22. { + 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 an elective share 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. + }
{ +
MISCELLANEOUS + }
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 + }.
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 22 of this 2009 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 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. + }
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
2009 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 2009 Act. + }
{ +
EFFECTIVE DATE + }
SECTION 30. { + This 2009 Act takes effect on January 1,
2011. + }
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