75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
SA to A-Eng. HB 3077
LC 621/HB 3077-A5
SENATE AMENDMENTS TO
A-ENGROSSED HOUSE BILL 3077
By COMMITTEE ON JUDICIARY
June 2
On page 1 of the printed A-engrossed bill, line 2, delete '
114.545,'.
Delete lines 6 through 26 and delete pages 2 through 13 and
insert:
' { + SECTION 1. + } { + Sections 2 to 20 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 20 of this 2009 Act. An election under
sections 2 to 20 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 20 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 20 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 20 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
20 of this 2009 Act. A court of this state has authority to order
distribution under sections 2 to 20 of this 2009 Act of all
properties included in the augmented estate under sections 2 to
20 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 19 (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 16 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 16 of this 2009 Act. + }
' { + SECTION 6. + } { + Waiver of right to elect and other
rights. (1) The right of election under sections 2 to 20 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) 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
20 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 20 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 and 12 of this 2009 Act.
' (c) The surviving spouse's estate, as described in section 13
of this 2009 Act.
' (d) The decedent's probate transfers to the surviving spouse,
as described in section 14 of this 2009 Act.
' (e) The decedent's nonprobate transfers to the surviving
spouse, as described in section 15 of this 2009 Act.
' (2) The value attributable to any property included in the
augmented estate under sections 2 to 20 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 20 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.
' (3) The augmented estate does not include any property that
is community property under ORS 112.705 to 112.775 or 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 20 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 14 of this 2009 Act. + }
'
{ + (Decedent's Nonprobate Estate) + }
' { + SECTION 11. + } { + Decedent's nonprobate estate. For
purposes of sections 2 to 20 of this 2009 Act, a decedent's
nonprobate estate consists of the property described in section
12 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.
' (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 co-ownership 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. + }
'
{ + (Surviving Spouse's Estate) + }
' { + SECTION 13. + } { + Surviving spouse's estate. (1)
For purposes of sections 2 to 20 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 14 of this 2009
Act, as determined on the date of the decedent's death.
' (b) The decedent's probate transfers to the spouse, as
described in section 14 of this 2009 Act.
' (c) Any property that would have been included under
paragraph (a) or (b) 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
100 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
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 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. + }
'
{ + (Decedent's Probate Transfers to Spouse) + }
' { + SECTION 14. + } { + 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 15. + } { + 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, as described 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 co-ownership registration with the right of survivorship,
to the extent that the decedent's ownership interest passed to
the surviving spouse as surviving co-owner;
' (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 and 12 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 16. + } { + 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 13
of this 2009 Act.
' (b) The amount of all of the decedent's probate transfers to
the surviving spouse described in section 14 of this 2009 Act.
' (c) The amount of all of the decedent's nonprobate transfers
to the surviving spouse described in section 15 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 20 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) 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 20 of this 2009 Act.
' (6) 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 17. + } { + 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 20 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. + }
' { + SECTION 18. + } { + 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 19. + } { + 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 20. + } { + 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 21. + } 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 20 of this
2009 Act + }.
' { + SECTION 22. + } 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 20 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 23. + } { + Sections 2 to 20 of this 2009 Act
and the amendments to ORS 114.555 by section 21 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 25 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 24. + } { + 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 (2) of
this 2009 Act applies to contracts, agreements or waivers entered
into before, on or after the effective date of this 2009 Act. + }
' { + SECTION 25. + } { + ORS 114.105, 114.115, 114.125,
114.135, 114.145, 114.155 and 114.165 are repealed. + }
' { + SECTION 26. + } { + 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 27. + } { + This 2009 Act takes effect on
January 1, 2011. + } ' .
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