Chapter 112 — Intestate
Succession and Wills
2011 EDITION
INTESTATE SUCCESSION AND WILLS
PROBATE LAW
INTESTATE SUCCESSION
112.015 Net
intestate estate
112.025 Share
of surviving spouse if decedent leaves issue
112.035 Share
of surviving spouse if decedent leaves no issue
112.045 Share
of others than surviving spouse
112.047 Forfeiture
of parent’s share by reason of desertion or neglect
112.049 Petition
for forfeiture of parent’s share
112.055 Escheat
112.058 Preferences
and presumptions in escheat proceedings
112.065 Representation
defined
112.075 Time
of determining relationships; afterborn heirs
112.095 Persons
of the half blood
112.105 Succession
where parents not married
112.115 Persons
related to decedent through two lines
ADVANCEMENTS
112.135 When
gift is an advancement
112.145 Effect
of advancement on distribution
112.155 Death
of advancee before decedent
STATUS OF ADOPTED PERSONS
112.175 Adopted
persons
112.185 Effect
of more than one adoption
112.195 References
in wills, deeds and other instruments to accord with law of intestate
succession
WILLS
112.225 Who
may make a will
112.227 Intention
of testator expressed in will as controlling
112.230 Local
law of state selected by testator controlling unless against public policy
112.232 Uniform
International Wills Act
112.235 Execution
of a will
112.245 Witness
as beneficiary
112.255 Validity
of execution of a will
112.265 Testamentary
additions to trusts
112.270 Procedure
to establish contract to make will or devise or not to revoke will or devise
112.272 In
terrorem clauses valid and enforceable; exceptions
112.275 Manner
of revocation or alteration exclusive
112.285 Express
revocation or alteration
112.295 Revival
of revoked or invalid will
112.305 Revocation
by marriage
112.315 Revocation
by divorce or annulment
112.325 Contract
of sale of property devised not a revocation
112.335 Encumbrance
or disposition of property after making will
112.345 Devise
of life estate
112.355 Devise
passes all interest of testator
112.365 Property
acquired after making will
112.385 Nonademption
of specific devises in certain cases
112.395 When
estate passes to issue of devisee; anti-lapse; class gifts
112.400 Effect
of failure of devise
112.405 Children
born or adopted after execution of will; pretermitted children
112.410 Effect
of general disposition or residuary clause on testator’s power of appointment
112.415 Persons
not entitled to estate of testator
112.435 Disposition
of wills deposited with county clerk
EFFECT OF HOMICIDE OR ABUSE ON INTESTATE
SUCCESSION, WILLS, JOINT ASSETS, LIFE INSURANCE AND BENEFICIARY DESIGNATIONS
112.455 Definitions
for ORS 112.455 to 112.555
112.457 Application
to abuser
112.465 Slayer
or abuser considered to predecease decedent
112.475 Jointly
owned property
112.485 Property
jointly owned with others
112.495 Reversions,
vested remainders, contingent remainders and future interests
112.505 Property
appointed; powers of revocation or appointment
112.515 Proceeds
of insurance on life and other benefit plans of decedent
112.525 Proceeds
of insurance on life of slayer or abuser
112.535 Payment
by insurance company, financial institution, trustee or obligor; no additional
liability
112.545 Rights
of persons without notice dealing with slayer or abuser
112.555 Evidence
of felonious and intentional killing; conviction as conclusive
UNIFORM SIMULTANEOUS DEATH ACT
112.570 Definitions
for ORS 112.570 to 112.590
112.572 Requirement
of survival
112.578 Construction
of survivorship provisions in governing instruments
112.580 Co-owners
with right of survivorship; requirement of survival
112.582 Evidence
of death or status
112.586 Exceptions
112.588 Protection
of payors and other third parties
112.590 Protection
of bona fide purchasers; personal liability of recipient
DOWER AND CURTESY ABOLISHED
112.685 Dower
and curtesy abolished
112.695 Statute
of limitation for recovery of dower or curtesy
UNIFORM DISPOSITION OF COMMUNITY
PROPERTY RIGHTS AT DEATH ACT
112.705 Short
title
112.715 Application
to certain property
112.725 Rebuttable
presumptions
112.735 One-half
of property not subject to testamentary disposition or right to elect against
will
112.745 Proceedings
to perfect title
112.755 Who
may institute proceedings
112.765 Rights
of purchaser
112.775 Application
and construction
DISPOSITION OF WILLS
112.800 Definition
for ORS 112.800 to 112.830
112.805 Exclusive
manner of disposing of wills; destroyed will not revoked
112.810 Duties
of custodian of will
112.815 Conditions
for disposal of will
112.820 Procedure
for destruction of will; filing of affidavit; fee
112.825 Liability
for destruction of will
112.830 Court
may order delivery of will
112.010
[Amended by 1969 c.591 §69; renumbered 112.575]
INTESTATE
SUCCESSION
112.015 Net intestate estate.
Any part of the net estate of a decedent not effectively disposed of by the
will of the decedent shall pass as provided in ORS 112.025 to 112.055. [1969
c.591 §19]
112.017 [1993
c.598 §4; 1995 c.235 §1; repealed by 1999 c.133 §1]
112.020
[Amended by 1969 c.591 §70; renumbered 112.585]
112.025 Share of surviving spouse if
decedent leaves issue. If the decedent leaves a
surviving spouse and issue, the intestate share of the surviving spouse is:
(1)
If there are surviving issue of the decedent all of whom are issue of the
surviving spouse also, the entire net intestate estate.
(2)
If there are surviving issue of the decedent one or more of whom are not issue
of the surviving spouse, one-half of the net intestate estate. [1969 c.591 §20;
1987 c.329 §1]
112.030
[Amended by 1969 c.591 §71; renumbered 112.595]
112.035 Share of surviving spouse if
decedent leaves no issue. If the decedent leaves a
surviving spouse and no issue, the surviving spouse shall have all of the net
intestate estate. [1969 c.591 §21]
112.040
[Amended by 1969 c.591 §73; renumbered 112.615]
112.045 Share of others than surviving
spouse. The part of the net intestate estate
not passing to the surviving spouse shall pass:
(1)
To the issue of the decedent. If the issue are all of the same degree of
kinship to the decedent, they shall take equally, but if of unequal degree,
then those of more remote degrees take by representation.
(2)
If there is no surviving issue, to the surviving parents of the decedent.
(3)
If there is no surviving issue or parent, to the brothers and sisters of the
decedent and the issue of any deceased brother or sister of the decedent by
representation. If there is no surviving brother or sister, the issue of
brothers and sisters take equally if they are all of the same degree of kinship
to the decedent, but if of unequal degree, then those of more remote degrees
take by representation.
(4)
If there is no surviving issue, parent or issue of a parent, to the
grandparents of the decedent and the issue of any deceased grandparent of the
decedent by representation. If there is no surviving grandparent, the issue of
grandparents take equally if they are all of the same degree of kinship to the
decedent, but if of unequal degree, then those of more remote degrees take by
representation.
(5)
If, at the time of taking, surviving parents or grandparents of the decedent
are married to each other, they shall take real property as tenants by the
entirety and personal property as joint owners with the right of survivorship. [1969
c.591 §22]
112.047 Forfeiture of parent’s share by
reason of desertion or neglect. (1) Property
that would pass by intestate succession under ORS 112.045 from the estate of a
decedent to a parent of the decedent shall pass and be vested as if the parent
had predeceased the decedent if the decedent was an adult when the decedent
died and:
(a)
The parent of the decedent willfully deserted the decedent for the 10-year
period immediately preceding the date on which the decedent became an adult; or
(b)
The parent neglected without just and sufficient cause to provide proper care
and maintenance for the decedent for the 10-year period immediately preceding
the date on which the decedent became an adult.
(2)
Property that would pass by intestate succession under ORS 112.045 from the
estate of a decedent to a parent of the decedent shall pass and be vested as if
the parent had predeceased the decedent if the decedent was a minor when the
decedent died and:
(a)
The parent of the decedent willfully deserted the decedent for the life of the
decedent or for the 10-year period immediately preceding the date on which the
decedent died; or
(b)
The parent neglected without just and sufficient cause to provide proper care
and maintenance for the decedent for the life of the decedent or for the
10-year period immediately preceding the date on which the decedent died.
(3)
For the purposes of subsections (1) and (2) of this section, the court may
disregard incidental visitations, communications and contributions in
determining whether a parent willfully deserted the decedent or neglected
without just and sufficient cause to provide proper care and maintenance for
the decedent.
(4)
For the purposes of subsections (1) and (2) of this section, in determining
whether the parent willfully deserted the decedent or neglected without just
and sufficient cause to provide proper care and maintenance for the decedent,
the court may consider whether a custodial parent or other custodian attempted,
without good cause, to prevent or to impede contact between the decedent and
the parent whose intestate share would be forfeited under this section.
(5)
The intestate share of a parent of a decedent may be forfeited under this
section only pursuant to an order of the court entered after the filing of a
petition under ORS 112.049. A petition filed under ORS 113.035 may not request
the forfeiture of the intestate share of a parent of a decedent under this
section. [2005 c.741 §2]
Note:
Section 6, chapter 741, Oregon Laws 2005, provides:
Sec. 6.
Section 2 of this 2005 Act [112.047] and the amendments to ORS 113.035 and
113.145 by sections 4 and 5 of this 2005 Act apply only to the estates of
persons who die on or after the effective date of this 2005 Act [January 1,
2006]. [2005 c.741 §6]
112.049 Petition for forfeiture of parent’s
share. (1) A petition may be filed in probate
proceedings to assert that the intestate share of a parent of a decedent is
subject to forfeiture under ORS 112.047. A petition may be filed under this
section only by a person who would be benefited by a forfeiture of the parent’s
share.
(2)
A petition under this section must be filed not later than:
(a)
Four months after the date of delivery or mailing of the information described
in ORS 113.145 if that information was required to be delivered or mailed to
the person on whose behalf the petition is filed; or
(b)
Four months after the first publication of notice to interested persons if the
person on whose behalf the petition is filed was not required to be named as an
interested person in the petition for appointment of a personal representative.
(3)
The petitioner has the burden of proving the facts alleged in a petition filed
under this section by clear and convincing evidence. [2005 c.741 §3]
112.050
[Repealed by 1969 c.591 §305]
112.055 Escheat.
(1) If no person takes under ORS 112.025 to 112.045, the net intestate estate
escheats to the State of Oregon.
(2)
If a devisee or a person entitled to take under ORS 112.025 to 112.045 is not
identified or found, the share of that person escheats to the State of Oregon.
(3)
If a devisee or a person entitled to take under ORS 112.025 to 112.045 is not
identified or found:
(a)
The Department of State Lands has the same preference as the missing devisee or
person for the purpose of appointment as personal representative under ORS
113.085;
(b)
Title to property of the decedent that would vest in the missing devisee or
person under ORS 114.215 vests in the Department of State Lands; and
(c)
The Department of State Lands has all of the rights of the missing devisee or
person for the purposes of ORS chapters 111, 112, 113, 114, 115, 116 and 117,
including but not limited to the following:
(A)
The right to contest any will of the decedent under ORS 113.075; and
(B)
The right to information under ORS 113.145. [1969 c.591 §23; 2003 c.395 §2]
112.058 Preferences and presumptions in
escheat proceedings. (1) In any proceeding to
determine the escheat share of the estate of a decedent whose estate is wholly
or partially subject to probate in this state:
(a)
No preference shall be given to any person over escheat; and
(b)
After diligent search and inquiry appropriate to the circumstances, the
following presumptions apply in a proceeding to determine whether a missing
person has died:
(A)
A missing person whose death cannot be proved by other means lives to 100 years
of age.
(B)
A missing person who was exposed to a specific peril at the time the person
became missing has died if it is reasonable to expect from the nature of the
peril that proof of death would be impractical.
(C)
A missing person whose absence is unexplained has died if the character and
habits of the person are inconsistent with a voluntary absence for the time
that the person has been missing.
(D)
A missing person known to have been alive who has not been seen or heard from
for seven years has died if the person has been absent from the person’s usual
residence, the absence is unexplained, there are other persons who would have
been likely to have heard from the missing person during that period were the
missing person alive, and those other persons have not heard from the missing
person.
(2)
In any proceeding described by subsection (1) of this section, a missing person
who is presumed to be dead is also presumed to have had two children in
addition to any known issue of the person unless the presumption of death
arises by reason of the application of subsection (1)(b)(B) or (C) of this
section. [2003 c.395 §4]
112.060 [Amended
by 1969 c.591 §74; renumbered 112.625]
112.065 Representation defined.
“Representation” means the method of determining the passing of the net
intestate estate when the distributees are of unequal degrees of kinship to the
decedent. It is accomplished as follows: The estate shall be divided into as
many shares as there are surviving heirs of the nearest degree of kinship and
deceased persons of the same degree who left issue who survive the decedent,
each surviving heir of the nearest degree receiving one share and the share of
each deceased person of the same degree being divided among the issue of the
deceased person in the same manner. [1969 c.591 §24]
112.070
[Amended by 1969 c.591 §75; renumbered 112.635]
112.075 Time of determining relationships;
afterborn heirs. The relationships existing at
the time of the death of the decedent govern the passing of the net intestate
estate, but persons conceived before the death of the decedent and born alive
thereafter inherit as though they were alive at the time of the death of the
decedent. [1969 c.591 §25]
112.080
[Amended by 1969 c.591 §76; renumbered 112.645]
112.085 [1969
c.591 §26; 1973 c.506 §6; 1975 c.244 §1; repealed by 1999 c.131 §11]
112.095 Persons of the half blood.
Persons of the half blood inherit the same share that they would inherit if
they were of the whole blood. [1969 c.591 §27]
112.105 Succession where parents not
married. (1) For all purposes of intestate
succession, full effect shall be given to all relationships as described in ORS
109.060, except as otherwise provided by law in case of adoption.
(2)
For all purposes of intestate succession and for those purposes only, before
the relationship of father and child and other relationships dependent upon the
establishment of paternity shall be given effect under subsection (1) of this
section:
(a)
The paternity of the child shall have been established under ORS 109.070 during
the lifetime of the child or;
(b)
The father shall have acknowledged himself to be the father in writing signed
by him during the lifetime of the child. [1969 c.591 §28]
112.115 Persons related to decedent
through two lines. A person who is related to the
decedent through two lines of relationship is entitled to only a single share
based on the relationship which would entitle the person to the larger share. [1969
c.591 §29]
ADVANCEMENTS
112.135 When gift is an advancement.
If a person dies intestate as to all the estate of the person, property which
the person gave in the lifetime of the person to an heir shall be treated as an
advancement against the heir’s share of the estate if declared in writing by
the decedent or acknowledged in writing by the heir to be an advancement. For
that purpose the property advanced shall be valued as of the time the heir came
into possession or enjoyment of the property or as of the time of death of the
decedent, whichever occurs first. [1969 c.591 §30]
112.145 Effect of advancement on
distribution. (1) If the value of the advancement
exceeds the heir’s share of the estate, the heir shall be excluded from any
further share of the estate, but the heir shall not be required to refund any
part of the advancement. If the value of the advancement is less than the heir’s
share, the heir shall be entitled upon distribution of the estate to such
additional amount as will give the heir the heir’s share of the estate.
(2)
The property advanced is not a part of the estate, but for the purpose of
determining the shares of the heirs the advancement shall be added to the
estate, the sum then divided among the heirs and the advancement then deducted
from the share of the heir to whom the advancement was made. [1969 c.591 §31]
112.155 Death of advancee before decedent.
If the recipient of the property advanced fails to survive the decedent, the
amount of the advancement shall be taken into account in computing the share of
the issue of the recipient, whether or not the issue take by representation. [1969
c.591 §32]
STATUS OF ADOPTED PERSONS
112.175 Adopted persons.
(1) An adopted person, the issue and kindred of the adopted person shall take
by intestate succession from the adoptive parents, their issue and kindred, and
the adoptive parents, their issue and kindred shall take by intestate
succession from the adopted person, the issue and kindred of the adopted
person, as though the adopted person were the natural child of the adoptive
parents.
(2)
An adopted person shall cease to be treated as the child of the person’s
natural parents for all purposes of intestate succession by the adopted person,
the issue and kindred of the adopted person and the natural parents, their
issue and kindred, except:
(a)
If a natural parent of a person marries or remarries and the person is adopted
by the stepparent, the adopted person shall continue also to be treated, for
all purposes of intestate succession, as the child of the natural parent who is
the spouse of the adoptive parent.
(b)
If a natural parent of a person dies, the other natural parent remarries and
the person is adopted by the stepparent, the adopted person shall continue also
to be treated, for all purposes of intestate succession by any person through
the deceased natural parent, as the child of the deceased natural parent.
(3)
ORS chapters 111, 112, 113, 114, 115, 116 and 117 apply to adopted persons who
were adopted in this state or elsewhere. [1969 c.591 §33]
112.185 Effect of more than one adoption.
For all purposes of intestate succession, a person who has been adopted more
than once shall be treated as the child of the parents who have most recently
adopted the person and, except as otherwise provided in this section, shall
cease to be treated as the child of the previous adoptive parents. The person
shall continue also to be treated as the child of a natural parent or previous
adoptive parent only to the extent provided in ORS 112.175 (2), and for the
purpose of applying that subsection with reference to a previous adoptive
parent, “natural parent” in that subsection means the previous adoptive parent.
[1969 c.591 §34]
112.195 References in wills, deeds and
other instruments to accord with law of intestate succession.
Unless a contrary intent is established by the instrument, all references in a
will, deed, trust instrument or other instrument to an individual or member of a
class described generically in relation to a particular person as children,
issue, grandchildren, descendants, heirs, heirs of the body, next of kin,
distributees, grandparents, brothers, nephews or other relatives shall include
any person who would be treated as so related for all purposes of intestate
succession, except that an adopted person so included must have been adopted as
a minor or after having been a member of the household of the adoptive parent
while a minor. [1969 c.591 §35]
WILLS
112.225 Who may make a will.
Any person who is 18 years of age or older or who has been lawfully married,
and who is of sound mind, may make a will. [1969 c.591 §36]
112.227 Intention of testator expressed in
will as controlling. The intention of a testator as
expressed in the will of the testator controls the legal effect of the
dispositions of the testator. The rules of construction expressed in this
section, ORS 112.230 and 112.410 apply unless a contrary intention is indicated
by the will. [1973 c.506 §10]
112.230 Local law of state selected by
testator controlling unless against public policy.
The meaning and legal effect of a disposition in a will shall be determined by
the local law of a particular state selected by the testator in the instrument
of the testator unless the application of that law is contrary to the public
policy of this state. [1973 c.506 §11]
112.232 Uniform International Wills Act.
(1) As used in this section:
(a)
“International will” means a will executed in conformity with subsections (2)
to (5) of this section.
(b)
“Authorized person” and “person authorized to act in connection with
international wills” means a person who by subsection (9) of this section, or
by the laws of the United States including members of the diplomatic and
consular service of the United States designated by foreign service
regulations, is empowered to supervise the execution of international wills.
(2)(a)
A will is valid as regards form, irrespective particularly of the place where
it is made, of the location of the assets and of the nationality, domicile or
residence of the testator, if it is made in the form of an international will
complying with the requirements of this section.
(b)
The invalidity of the will as an international will does not affect its formal
validity as a will of another kind.
(c)
This section does not apply to the form of testamentary dispositions made by
two or more persons in one instrument.
(3)(a)
The will must be made in writing. It need not be written by the testator. It
may be written in any language, by hand or by any other means.
(b)
The testator shall declare in the presence of two witnesses and of a person
authorized to act in connection with international wills that the document is
the will of the testator and that the testator knows the contents thereof. The
testator need not inform the witnesses, or the authorized person, of the
contents of the will.
(c)
In the presence of the witnesses, and of the authorized person, the testator
shall sign the will or, if the testator has previously signed it, shall
acknowledge the signature.
(d)
If the testator is unable to sign, the absence of that signature does not
affect the validity of the international will if the testator indicates the
reason for inability to sign and the authorized person makes note thereof on
the will. In that case, it is permissible for any other person present,
including the authorized person or one of the witnesses, at the direction of
the testator, to sign the testator’s name for the testator if the authorized
person makes note of this on the will, but it is not required that any person
sign the testator’s name for the testator.
(e)
The witnesses and the authorized person shall there and then attest the will by
signing in the presence of the testator.
(4)(a)
The signatures must be placed at the end of the will. If the will consists of
several sheets, each sheet must be signed by the testator or, if the testator
is unable to sign, by the person signing on behalf of the testator or, if there
is no such person, by the authorized person. In addition, each sheet must be
numbered.
(b)
The date of the will must be the date of its signature by the authorized
person. That date must be noted at the end of the will by the authorized
person.
(c)
The authorized person shall ask the testator whether the testator wishes to
make a declaration concerning the safekeeping of the will. If so and at the
express request of the testator, the place where the testator intends to have
the will kept must be mentioned in the certificate provided for in subsection
(5) of this section.
(d)
A will executed in compliance with subsection (3) of this section is not
invalid merely because it does not comply with this subsection.
(5)
The authorized person shall attach to the will a certificate to be signed by
the authorized person establishing that the requirements of this section for
valid execution of an international will have been fulfilled. The authorized
person shall keep a copy of the certificate and deliver another to the testator.
The certificate must be substantially in the following form:
______________________________________________________________________________
CERTIFICATE
(Convention of
October 26, 1973)
1. I, _________(name, address and
capacity), a person authorized to act
in connection with international wills,
2. certify that on _________ (date)
at _________ (place)
3. (testator) _________(name, address,
date and place of birth) in my presence
and that of the witnesses
4. (a) _________(name, address, date
and place of birth)
(b) _________(name, address, date
and place of birth) has declared that
the attached document is the will of
the testator and that the testator
knows the contents thereof.
5. I furthermore certify that:
6. (a) in my presence and in that of the
witnesses
(1) the testator has signed
the will or has acknowledged
the testator’s signature
previously affixed.
*(2) following a declaration
of the testator stating that
the testator was unable to
sign the will for the following
reason____________,
I have mentioned this declaration
on the will, *and the
signature has been affixed by
_________ (name and address)
7. (b) the witnesses and I have signed
the will;
8. *(c) each page of the will has been
signed by ________ and numbered;
9. (d) I have satisfied myself as to
the identity of the testator and
of the witnesses as designated above;
10. (e) the witnesses met the conditions
requisite to act as such according
to the law under which I am acting;
11. *(f) the testator has requested me
to include the following statement
concerning the safekeeping of
the will: _______________
12. PLACE OF EXECUTION
13. DATE
14. SIGNATURE and, if necessary, SEAL
*to be
completed if appropriate
______________________________________________________________________________
(6) In the absence of evidence to the
contrary, the certificate of the authorized person is conclusive of the formal
validity of the instrument as a will under this section. The absence or
irregularity of a certificate does not affect the formal validity of a will
under this section.
(7) An international will is subject to
the ordinary rules of revocation of wills.
(8) Subsections (1) to (7) of this section
derive from Annex to Convention of October 26, 1973, Providing a Uniform Law on
the Form of an International Will. In interpreting and applying this section,
regard shall be had to its international origin and to the need for uniformity
in its interpretation.
(9) Individuals who have been admitted to
practice law before the courts of this state and are currently licensed so to
do are authorized persons in relation to international wills.
(10) This section may be referred to and
cited as the Uniform International Wills Act. [1981 c.481 §2; 1993 c.98 §2]
112.235
Execution of a will. A will shall be in writing and
shall be executed with the following formalities:
(1) The testator, in the presence of each
of the witnesses, shall:
(a) Sign the will; or
(b) Direct one of the witnesses or some
other person to sign thereon the name of the testator; or
(c) Acknowledge the signature previously
made on the will by the testator or at the testator’s direction.
(2) Any person who signs the name of the
testator as provided in subsection (1)(b) of this section shall sign the signer’s
own name on the will and write on the will that the signer signed the name of
the testator at the direction of the testator.
(3) At least two witnesses shall each:
(a) See the testator sign the will; or
(b) Hear the testator acknowledge the
signature on the will; and
(c) Attest the will by signing the witness’
name to it.
(4) A will executed in compliance with the
Uniform International Wills Act shall be deemed to have complied with the
formalities of this section. [1969 c.591 §37; 1973 c.506 §7; 1981 c.481 §4]
112.237
[1981 c.481 §3; repealed by 1993 c.98 §26]
112.245
Witness as beneficiary. A will attested by an interested
witness is not thereby invalidated. An interested witness is one to whom is
devised a personal and beneficial interest in the estate. [1969 c.591 §38; 1973
c.506 §8]
112.255
Validity of execution of a will. (1) A will is
lawfully executed if it is in writing, signed by or at the direction of the
testator and otherwise executed in accordance with the law of:
(a) This state at the time of execution or
at the time of death of the testator; or
(b) The domicile of the testator at the
time of execution or at the time of the testator’s death; or
(c) The place of execution at the time of
execution.
(2) A will is lawfully executed if it complies
with the Uniform International Wills Act. [1969 c.591 §39; 1981 c.481 §5]
112.265
Testamentary additions to trusts. (1) A devise
may be made by a will to the trustee or trustees of a trust, regardless of the
existence, size or character of the corpus of the trust, if:
(a) The trust is established or will be
established by the testator, or by the testator and some other person or
persons, or by some other person or persons;
(b) The trust is identified in the
testator’s will; and
(c) The terms of the trust are set forth
in a written instrument, other than a will, executed before, concurrently with,
or after the execution of the testator’s will, or in the valid last will of a
person who has predeceased the testator.
(2) The trust may be funded during the
testator’s lifetime or upon the testator’s death by the testator’s devise to
the trustee or trustees. The trust may be a funded or unfunded life insurance
trust, although the trustor has reserved any or all of the rights of ownership
of the insurance contracts.
(3) The devise shall not be invalid
because the trust:
(a) Is amendable or revocable, or both; or
(b) Was amended after the execution of the
testator’s will or after the death of the testator.
(4) Unless the testator’s will provides
otherwise, the property so devised:
(a) Shall not be considered to be held
under a testamentary trust of the testator, but shall become a part of the
trust to which it is given; and
(b) Shall be administered and disposed of
in accordance with the provisions of the instrument or will setting forth the
terms of the trust, including any amendments thereto made before or after the
death of the testator, regardless of whether made before or after the execution
of the testator’s will.
(5) Unless the testator’s will provides
otherwise, a revocation or termination of the trust before the death of the
testator shall cause the devise to lapse.
(6) This section shall not be construed as
providing an exclusive method for making devises to the trustee or trustees of
a trust established otherwise than by the will of the testator making the
devise.
(7) This section shall be so construed as
to effectuate its general purpose to make uniform the law of those states that
enact the same or similar provisions. [1969 c.591 §40; 1999 c.132 §1]
112.270
Procedure to establish contract to make will or devise or not to revoke will or
devise. (1) A contract to make a will or
devise, or not to revoke a will or devise, or to die intestate, executed after
January 1, 1974, shall be established only by:
(a) Provisions of a will stating material
provisions of the contract;
(b) An express reference in a will to a
contract and extrinsic evidence proving the terms of the contract; or
(c) A writing signed by the decedent
evidencing the contract.
(2) The execution of a joint will or
mutual wills does not create a presumption of a contract not to revoke the will
or wills. [1973 c.506 §13]
112.272
In terrorem clauses valid and enforceable; exceptions.
(1) Except as provided in this section, an in terrorem clause in a will is
valid and enforceable. If a devisee contests a will that contains an in
terrorem clause that applies to the devisee, the court shall enforce the clause
against the devisee even though the devisee establishes that there was probable
cause for the contest.
(2) The court shall not enforce an in
terrorem clause if the devisee contesting the will establishes that the devisee
has probable cause to believe that the will is a forgery or that the will has
been revoked.
(3) The court shall not enforce an in
terrorem clause if the contest is brought by a fiduciary acting on behalf of a
protected person under the provisions of ORS chapter 125, a guardian ad litem
appointed for a minor, or a guardian ad litem appointed for an incapacitated or
financially incapable person.
(4) For the purposes of this section, “in
terrorem clause” means a provision in a will that reduces or eliminates a
devise to a devisee if the devisee contests the will. [1997 c.151 §2]
112.275
Manner of revocation or alteration exclusive. A will
may be revoked or altered only as provided in ORS 112.285 to 112.315. [1969
c.591 §41]
112.285
Express revocation or alteration. (1) A will
may be revoked or altered by another will.
(2) A will may be revoked by being burned,
torn, canceled, obliterated or destroyed, with the intent and purpose of the
testator of revoking the will, by the testator, or by another person at the
direction of the testator and in the presence of the testator. The injury or
destruction by a person other than the testator at the direction and in the
presence of the testator shall be proved by at least two witnesses. [1969 c.591
§42]
112.295
Revival of revoked or invalid will. If a will or
a part thereof has been revoked or is invalid, it can be revived only by a
re-execution of the will or by the execution of another will in which the
revoked or invalid will or part thereof is incorporated by reference. [1969
c.591 §43]
112.305
Revocation by marriage. A will is revoked by the
subsequent marriage of the testator if the testator is survived by a spouse,
unless:
(1) The will evidences an intent that it
not be revoked by the subsequent marriage or was drafted under circumstances
establishing that it was in contemplation of the marriage; or
(2) The testator and spouse entered into a
written contract before the marriage that either makes provision for the spouse
or provides that the spouse is to have no rights in the estate of the testator.
[1969 c.591 §44]
112.315
Revocation by divorce or annulment. Unless a will
evidences a different intent of the testator, the divorce or annulment of the
marriage of the testator after the execution of the will revokes all provisions
in the will in favor of the former spouse of the testator and any provision
therein naming the former spouse as executor, and the effect of the will is the
same as though the former spouse did not survive the testator. [1969 c.591 §45]
112.325
Contract of sale of property devised not a revocation.
An executory contract of sale made by a testator to convey property devised in
a will previously made, is not a revocation of the previous devise, either in
law or equity; but the property shall pass by the devise, subject to the same
remedies on the agreement, for specific performance or otherwise, against
devisees as might be had against the heirs of the testator if the property had
descended to them. [1969 c.591 §46]
112.335
Encumbrance or disposition of property after making will.
An encumbrance or disposition of property by a testator after the testator
makes a will does not affect the operation of the will upon a remaining
interest therein that is subject to the disposal of the testator at the time of
the death of the testator. [1969 c.591 §47]
112.345
Devise of life estate. A devise of property to any
person for the term of the life of the person, and after the death of the
person to the children or heirs of the person, vests an estate or interest for
life only in the devisee and remainder in the children or heirs. [1969 c.591 §48]
112.355
Devise passes all interest of testator. A devise of
property passes all of the interest of the testator therein at the time of the
death of the testator, unless the will evidences the intent of the testator to
devise a lesser interest. [1969 c.591 §49]
112.365
Property acquired after making will. Any property
acquired by the testator after the making of a will passes thereby, and in like
manner as if title thereto were vested in the testator at the time of making
the will, unless the intent expressed in the will is clear and explicit to the
contrary. [1969 c.591 §50]
112.375
[1969 c.591 §51; repealed by 1973 c.506 §46]
112.385
Nonademption of specific devises in certain cases.
(1) In the situations and under the circumstances provided in and governed by
this section, specific devises will not fail or be extinguished by the
destruction, damage, sale, condemnation or change in form of the property
specifically devised. This section is inapplicable if the intent that the
devise fail under the particular circumstances appears in the will or if the
testator during the lifetime of the testator gives property to the specific
devisee with the intent of satisfying the specific devise.
(2) Whenever the subject of a specific
devise is property only part of which is destroyed, damaged, sold or condemned,
the specific devise of any remaining interest in the property owned by the
testator at the time of death is not affected by this section; but this section
applies to the part which would have been adeemed under the common law by the
destruction, damage, sale or condemnation.
(3) If insured property that is the
subject of a specific devise is destroyed or damaged, the specific devisee has
the right to receive, reduced by any amount expended or incurred by the testator
in restoration or repair of the property:
(a) Any insurance proceeds paid to the
personal representative after the death of the testator, with the incidents of
the specific devise; and
(b) A general pecuniary legacy equivalent
to any insurance proceeds paid to the testator within six months before the
death of the testator.
(4) If property that is the subject of a
specific devise is sold by the testator, the specific devisee has the right to
receive:
(a) Any balance of the purchase price
unpaid at the time of the death of the testator, including any security
interest in the property and interest accruing before the death, if part of the
estate, with the incidents of the specific devise; and
(b) A general pecuniary legacy equivalent
to the amount of the purchase price paid to the testator within six months
before the death of the testator. Acceptance of a promissory note of the
purchaser or a third party is not considered payment, but payment on the note
is payment on the purchase price. Sale by an agent of the testator or by a
trustee under a revocable living trust created by the testator, the principal
of which is to be paid to the personal representative or estate of the testator
on the death of the testator, is a sale by the testator for purposes of this
section.
(5) If property that is the subject of a
specific devise is taken by condemnation before the death of the testator, the
specific devisee has the right to receive:
(a) Any amount of the condemnation award
unpaid at the time of the death, with the incidents of the specific devise; and
(b) A general pecuniary legacy equivalent
to the amount of an award paid to the testator within six months before the
death of the testator. In the event of an appeal in a condemnation proceeding,
the award, for purposes of this section, is limited to the amount established
on the appeal.
(6) If property that is the subject of a
specific devise is sold by a conservator of the testator, or insurance proceeds
or a condemnation award are paid to a conservator of the testator, the specific
devisee has the right to receive a general pecuniary legacy equivalent to the
proceeds of the sale, the insurance proceeds or the condemnation award, reduced
by any amount expended or incurred in restoration or repair of the property.
This subsection does not apply if the testator, after the sale, receipt of
insurance proceeds or award, is adjudicated competent and survives such
adjudication by six months.
(7) If securities are specifically
devised, and after the execution of the will other securities in the same or
another entity are distributed to the testator by reason of ownership of the
specifically devised securities and as a result of a partial liquidation, stock
dividend, stock split, merger, consolidation, reorganization, recapitalization,
redemption, exchange or any other similar transaction, and if the other
securities are part of the estate of the testator at death, the specific devise
is considered to include the additional or substituted securities.
Distributions prior to death with respect to a specifically devised security
not provided for in this subsection are not part of the specific devise. As
used in this subsection, “securities” means the same as defined in ORS 59.015.
(8) The amount a specific devisee receives
as provided in this section is reduced by any expenses of the sale or of
collection of proceeds of insurance, sale or condemnation award and by any
amount by which the income tax of the decedent or the estate of the decedent is
increased by reason of items provided for in this section. Expenses include
legal fees paid or incurred. [1969 c.591 §52; 1973 c.506 §14; 1975 c.491 §6;
1995 c.664 §84]
112.395
When estate passes to issue of devisee; anti-lapse; class gifts.
When property is devised to any person who is related by blood or adoption to
the testator and who dies before the testator leaving lineal descendants, the
descendants take by representation the property the devisee would have taken if
the devisee had survived the testator, unless otherwise provided in the will of
the testator. Unless otherwise provided in the will of the testator, one who
would have been a devisee under a class gift if the person had survived the
testator is treated as a devisee for purposes of this section if death occurred
after execution of the will. [1969 c.591 §53; 1973 c.506 §15]
112.400
Effect of failure of devise. Except as
provided in ORS 112.395:
(1) If a devise other than a residuary
devise fails for any reason, it becomes a part of the residue.
(2) If the residue is devised to two or
more persons and the share of one of the residuary devisees fails for any
reason, the share passes to the other residuary devisee or to other residuary
devisees in proportion to their interests in the residue. [1973 c.506 §17]
112.405
Children born or adopted after execution of will; pretermitted children.
(1) As used in this section, “pretermitted child” means a child of a testator
who is born or adopted after the execution of the will of the testator, who is
neither provided for in the will nor in any way mentioned in the will and who
survives the testator.
(2) If a testator has one or more children
living when the testator executes a will and no provision is made in the will
for any such living child, a pretermitted child shall not take a share of the
estate of the testator disposed of by the will.
(3) If a testator has one or more children
living when the testator executes a will and provision is made in the will for
one or more of such living children, a pretermitted child is entitled to share
in the estate of the testator disposed of by the will as follows:
(a) The pretermitted child may share only
in the portion of the estate devised to the living children by the will.
(b) The share of each pretermitted child
shall be the total value of the portion of the estate devised to the living
children by the will divided by the number of pretermitted children plus the
number of living children for whom provision, other than nominal provision, is
made in the will.
(c) To the extent feasible, the interest
of a pretermitted child in the estate shall be of the same character, whether
equitable or legal, as the interest the testator gave to the living children by
the will.
(4) If a testator has no child living when
the testator executes a will, a pretermitted child shall take a share of the
estate as though the testator had died intestate.
(5) A pretermitted child may recover the
share of the estate to which the child is entitled, as provided in this
section, either from the other children under subsection (3) of this section or
from the testamentary beneficiaries under subsection (4) of this section,
ratably, out of the portions of the estate passing to those persons under the
will. In abating the interests of those beneficiaries, the character of the
testamentary plan adopted by the testator shall be preserved so far as
possible. [1969 c.591 §54]
112.410
Effect of general disposition or residuary clause on testator’s power of
appointment. A general residuary clause in a will or
a will making general disposition of all of the testator’s property does not
exercise a power of appointment held by the testator unless specific reference
is made to the power or there is some other indication of intention to include
the property subject to the power. [1973 c.506 §12]
112.415
Persons not entitled to estate of testator. Except
as otherwise expressly provided by law, a person, including a child of the
testator and a descendant of that child, shall not take or be entitled to take
any portion of the estate of a testator disposed of by the will of the testator
other than as provided in the will. [1969 c.591 §55]
112.425
[1969 c.591 §56; repealed by 1989 c.770 §11]
112.435
Disposition of wills deposited with county clerk.
So far as the county clerk is able, the county clerk of each county shall
deliver to the testator, or to the person to whom the will is to be delivered
after the death of the testator, each will deposited in the office of the
county clerk for safekeeping pursuant to ORS 114.410 (1965 Replacement Part).
Any will the county clerk has been unable to so deliver before January 1, 2010,
may be destroyed by the county clerk. [1969 c.591 §57]
EFFECT
OF HOMICIDE OR ABUSE ON INTESTATE SUCCESSION, WILLS, JOINT ASSETS, LIFE
INSURANCE AND BENEFICIARY DESIGNATIONS
112.455
Definitions for ORS 112.455 to 112.555. As used in
ORS 112.455 to 112.555:
(1) “Abuser” means a person who is
convicted of a felony by reason of conduct that constitutes physical abuse as
described in ORS 124.105 or financial abuse as described in ORS 124.110.
(2) “Decedent” means:
(a) A person whose life is taken by a
slayer; or
(b) A person whose date of death is not
later than five years after an abuser is convicted of a felony by reason of
conduct against the person that constitutes physical abuse as described in ORS
124.105 or financial abuse as described in ORS 124.110.
(3) “Slayer” means a person who, with
felonious intent, takes or procures the taking of the life of a decedent. [1969
c.591 §58; 2005 c.270 §1]
112.457
Application to abuser. ORS 112.455 to 112.555 apply to
an abuser only if the decedent dies within five years after the abuser is
convicted of a felony by reason of conduct that constitutes physical abuse of
the decedent, as described in ORS 124.105, or financial abuse of the decedent,
as described in ORS 124.110. [2005 c.671 §7]
112.465
Slayer or abuser considered to predecease decedent.
(1) Property that would have passed by reason of the death of a decedent to a
person who was a slayer or an abuser of the decedent, whether by intestate
succession, by will, by transfer on death deed or by trust, passes and vests as
if the slayer or abuser had predeceased the decedent.
(2) Property that would have passed by
reason of the death of an heir or devisee of a decedent to a person who was the
slayer or abuser of the decedent, whether by intestate succession, by will, by
transfer on death deed or by trust, passes and vests as if the slayer or abuser
had predeceased the decedent unless the heir or devisee specifically provides
otherwise in a will or other instrument executed after the death of the
decedent. [1969 c.591 §59; 2005 c.270 §2; 2005 c.535 §1a; 2011 c.212 §26]
112.475
Jointly owned property. If a slayer of a decedent and
the decedent, or an abuser of a decedent and the decedent, owned property as
tenants by the entirety or with a right of survivorship, upon the death of the
decedent an undivided one-half interest remains in the slayer or abuser for the
lifetime of the slayer or abuser and subject to that interest the property
passes to and is vested in the heirs or devisees of the decedent other than the
slayer or abuser. [1969 c.591 §60; 2005 c.270 §3]
112.485
Property jointly owned with others. If a slayer
of a decedent, the decedent and one or more other persons owned property with a
right of survivorship, or if an abuser of a decedent, the decedent and one more
other persons owned property with a right of survivorship, upon the death of
the decedent the interest of the slayer or abuser remains as an undivided
interest in the slayer or abuser for the lifetime of the slayer or abuser and
subject to that interest the property passes to and is vested in the other
surviving owner or owners. [1969 c.591 §61; 2005 c.270 §4]
112.495
Reversions, vested remainders, contingent remainders and future interests.
(1) Property in which a slayer of a decedent, or an abuser of a decedent, owns
a reversion or vested remainder subject to an estate for the lifetime of the
decedent passes to the heirs or devisees of the decedent for a period of time
equal to the normal life expectancy of a person of the sex and age of the
decedent at the time of death. If the particular estate is owned by a third
person for the lifetime of the decedent, the estate continues in the third
person for a period of time equal to the normal life expectancy of a person of
the sex and age of the decedent at the time of death.
(2) As to a contingent remainder or
executory or other future interest owned by a slayer of a decedent or an abuser
of a decedent that becomes vested in the slayer or abuser or increased in any
way for the slayer or abuser upon the death of the decedent:
(a) If the interest would not have
increased or become vested if the slayer or abuser had predeceased the
decedent, the slayer or abuser is considered to have predeceased the decedent;
and
(b) In any case, the interest shall not be
so vested or increased during a period of time equal to the normal life
expectancy of a person of the sex and age of the decedent at the time of death.
[1969 c.591 §62; 2005 c.270 §5]
112.505
Property appointed; powers of revocation or appointment.
(1) Property appointed by the will of the decedent to or for the benefit of a
slayer of a decedent or an abuser of a decedent is distributed as if the slayer
or abuser had predeceased the decedent.
(2) Property owned either presently or in
remainder by a slayer of a decedent or an abuser of a decedent, subject to be
divested by the exercise by the decedent of a power of revocation or a general
power of appointment, passes to and is vested in the heirs or devisees of the
decedent other than the slayer or abuser. Property so owned by the slayer or
abuser, subject to be divested by the exercise by the decedent of a power of
appointment to a particular person or persons or to a class of persons, passes
to the person or persons or in equal shares to the members of the class of
persons to the exclusion of the slayer or abuser. [1969 c.591 §63; 2005 c.270 §6]
112.515
Proceeds of insurance on life and other benefit plans of decedent.
(1) Except as provided under subsection (2) of this section, proceeds payable
under any of the following instruments to or for the benefit of a slayer of a
decedent or an abuser of a decedent, as beneficiary or assignee of the decedent
or as beneficiary or assignee of an heir or devisee of the decedent, must be
paid to the secondary beneficiary or, if there is no secondary beneficiary, to
the personal representative of the estate of the decedent or the decedent’s
heir or devisee:
(a) A policy or certificate of insurance
on the life of the decedent.
(b) A certificate of membership in any
benevolent association or organization on the life of the decedent.
(c) Rights of the decedent as survivor of
a joint life policy.
(d) Proceeds under any pension,
profit-sharing or other plan.
(2) Proceeds payable under any of the
instruments specified in subsection (1) of this section to or for the benefit
of a slayer of a decedent or an abuser of a decedent as beneficiary or assignee
of an heir or devisee of the decedent shall be paid to the slayer or abuser if
the heir or devisee specifically provides for that payment by written
instrument executed after the death of the decedent. [1969 c.591 §64; 2005
c.270 §7; 2005 c.535 §2a]
112.525
Proceeds of insurance on life of slayer or abuser.
If a decedent is beneficiary or assignee of any policy or certificate of
insurance on the life of a slayer of the decedent or an abuser of the decedent,
the proceeds shall be paid to the personal representative of the decedent’s
estate unless:
(1) The policy or certificate names some
person other than the slayer or abuser, or the personal representative of the
slayer or abuser, as the secondary beneficiary.
(2) The slayer or abuser, by naming a new
beneficiary or assignee, performs an act which would have deprived the decedent
of the interest of the decedent if the decedent had been living. [1969 c.591 §65;
2005 c.270 §8]
112.535
Payment by insurance company, financial institution, trustee or obligor; no additional
liability. Any insurance company making payment
according to the terms of its policy, or any financial institution, trustee or
other person performing an obligation to a slayer of a decedent or an abuser of
a decedent is not subject to additional liability because of ORS 112.455 to
112.555 if the payment or performance is made without written notice by a
claimant of a claim arising under those sections. Upon receipt of written
notice the person to whom it is directed may withhold any disposition of the
property pending determination of the duties of the person. [1969 c.591 §66;
1997 c.631 §403; 2005 c.270 §9]
112.545
Rights of persons without notice dealing with slayer or abuser.
ORS 112.455 to 112.555 do not affect the rights of any person who for value and
without notice purchases or agrees to purchase property that a slayer of a
decedent or an abuser of a decedent would have acquired except for ORS 112.455
to 112.555, but all proceeds received by the slayer or abuser from the sale
shall be held by the slayer or abuser in trust for the persons entitled to the
property as provided in ORS 112.455 to 112.555. The slayer or abuser is liable
for any portion of the proceeds of the sale that the slayer or abuser spends
and for the difference, if any, between the amount received from the sale and
the actual value of the property. [1969 c.591 §67; 2005 c.270 §10]
112.555
Evidence of felonious and intentional killing; conviction as conclusive.
A final judgment of conviction of felonious and intentional killing is
conclusive for purposes of ORS 112.455 to 112.555. In the absence of a
conviction of felonious and intentional killing the court may determine by a
preponderance of evidence whether the killing was felonious and intentional for
purposes of ORS 112.455 to 112.555. [1969 c.591 §68; 1973 c.506 §18]
UNIFORM
SIMULTANEOUS DEATH ACT
112.570
Definitions for ORS 112.570 to 112.590. As used in
ORS 112.570 to 112.590:
(1) “Co-owners with right of survivorship”
means joint tenants, tenants by the entirety and any other co-owners of
property or accounts that are held in a manner that entitles one or more of the
owners to ownership of the whole of the property or account upon the death of
one or more of the other owners.
(2) “Governing instrument” means:
(a) A deed;
(b) A will;
(c) A transfer on death deed under ORS
93.948 to 93.979;
(d) A trust;
(e) An insurance or annuity policy account
with a payable-on-death designation;
(f) A pension, profit-sharing, retirement
or similar benefit plan;
(g) An instrument creating or exercising a
power of appointment or a power of attorney; or
(h) Any other dispositive, appointive or
nominative instrument of a type similar to those instruments specified in this
subsection.
(3) “Payor” means a trustee, insurer,
employer, governmental agency, political subdivision or any other person
authorized or obligated by law or by a governing instrument to make payments. [1999
c.131 §1; 2011 c.212 §27]
Note:
112.570 to 112.590 were enacted into law by the Legislative Assembly but were
not added to or made a part of ORS chapter 112 or any series therein by
legislative action. See Preface to Oregon Revised Statutes for further
explanation.
112.572
Requirement of survival. Except as provided in ORS
112.586, if the title to property, the devolution of property, the right to
elect an interest in property or the right to exempt property depends upon
whether a specified person survives the death of another person, the specified
person shall be deemed to have died before the other person unless it is
established by clear and convincing evidence that the specified person survived
the other person by at least 120 hours. [1999 c.131 §2]
Note:
See note under 112.570.
112.575
[Formerly 112.010; repealed by 1999 c.131 §11]
112.578
Construction of survivorship provisions in governing instruments.
Except as provided in ORS 112.586, if a governing instrument contains a
provision the operation of which is conditioned on whether a specified person
survives the death of another person or survives another event, the specified
person shall be deemed to have died before the other person or before the other
event unless it is established by clear and convincing evidence that the
specified person survived the other person or event by at least 120 hours. [1999
c.131 §3]
Note:
See note under 112.570.
112.580
Co-owners with right of survivorship; requirement of survival.
(1) Except as provided in ORS 112.586, if property is held by two co-owners
with right of survivorship and both co-owners are deceased, one-half of the
property passes as if one co-owner had survived the second co-owner by 120
hours or more, and one-half of the property passes as if the second co-owner
had survived the first co-owner by 120 hours or more, unless it is established
by clear and convincing evidence that one of two co-owners survived the other
co-owner by at least 120 hours.
(2) Except as provided in ORS 112.586, if
property is held by more than two co-owners and it is not established by clear
and convincing evidence that at least one of the owners survived the others by
at least 120 hours, the property passes in the proportion that one bears to the
whole number of co-owners. [1999 c.131 §4]
Note:
See note under 112.570.
112.582
Evidence of death or status. (1) For the
purpose of establishing death under the survivorship rules established under
ORS 112.570 to 112.590, death occurs when an individual has sustained
irreversible cessation of circulatory and respiratory functions, or when there
has been an irreversible cessation of all functions of the entire brain,
including the brain stem. A determination of death must be made in accordance
with accepted medical standards.
(2)(a) For the purpose of establishing
death under the survivorship rules established under ORS 112.570 to 112.590, a
certified or authenticated copy of a death certificate purporting to be issued
by an official or agency of the place where the death is alleged to have
occurred is prima facie evidence of the identity of the decedent and of the
fact, place, date and time of death.
(b) A certified or authenticated copy of
any record or report of a governmental agency, domestic or foreign, that an
individual is missing, detained, dead or alive is prima facie evidence of the
status of the person and of the dates, circumstances and places disclosed by
the record or report.
(3) In the absence of prima facie evidence
of death under subsection (2) of this section, the facts surrounding a person’s
death may be established by clear and convincing evidence. Circumstantial
evidence may be considered in determining whether a person has died and the
circumstances of the death.
(4) An individual whose death is not
otherwise established under this section but who is absent for a continuous
period of five years is presumed to be dead if the person has made no contact
with another person during the five-year period and the absence of the person
cannot be satisfactorily explained after diligent search or inquiry. A person
presumed dead under this subsection is presumed to have died at the end of the
five-year period unless it is proved by a preponderance of the evidence that
death occurred at a different time.
(5) In the absence of evidence
contradicting a time of death specified in a document described in subsection
(2) of this section, a document described in subsection (2) of this section
that indicates a time of death 120 hours or more after the time of death of
another person conclusively establishes that the person specified in the
document survived the other person by at least 120 hours, without regard to the
manner in which the time of death of the other person is determined. [1999
c.131 §5]
Note:
See note under 112.570.
112.585
[Formerly 112.020; repealed by 1999 c.131 §11]
112.586
Exceptions. (1) The survivorship rules established
under ORS 112.570 to 112.590 do not apply in any situation in which application
would result in escheat of an intestate estate to the state.
(2) The survivorship rules established
under ORS 112.570 to 112.590 do not apply if a governing instrument contains
language that specifically addresses the possibility of simultaneous deaths or
deaths in a common disaster, and the language of the instrument is controlling
under the circumstances of the deaths.
(3) The survivorship rules established
under ORS 112.570 to 112.590 do not apply if a governing instrument expressly
provides that a person is not required to survive the death of another person
or to survive another event by any specified period.
(4) The survivorship rules established under
ORS 112.570 to 112.590 do not apply if the governing instrument expressly
requires the person to survive the death of another person or to survive
another event for a specified period of time other than provided under the
survivorship rules established under ORS 112.570 to 112.590. If the governing
instrument so provides, survival of the death of the other person or survival
of the other event by at least the specified amount of time must be established
by clear and convincing evidence.
(5) The survivorship rules established
under ORS 112.570 to 112.590 do not apply if application of those rules would
cause a nonvested property interest or a power of appointment to be invalid
under ORS 105.950 (1)(a), (2)(a) or (3)(a). In cases subject to this subsection,
survival of the death of the other person or survival of the other event must
still be established by clear and convincing evidence.
(6) The survivorship rules established
under ORS 112.570 to 112.590 do not apply in cases in which there are multiple governing
instruments and application of the rules to the governing instruments would
result in an unintended failure or duplication of a disposition. In cases
subject to this subsection, survival of the death of the other person or
survival of the other event must still be established by clear and convincing
evidence. [1999 c.131 §6]
Note:
See note under 112.570.
112.588
Protection of payors and other third parties. (1)
Unless a payor or other third party has received written notice of a claim
under subsection (2) of this section, the payor or other third party is not
liable for making a payment to, transferring property to, or conferring any
other benefit on a person who appears to be entitled to the payment, property
or benefit under a good faith reading of a governing instrument but who is not
entitled to the payment, property or benefit by reason of the survivorship
rules established under ORS 112.570 to 112.590. A payor or other third party is
liable for a payment, property or other benefit conveyed after the payor or
other third party receives written notice of a claim under subsection (2) of
this section.
(2) Written notice of a claim that a
person is not entitled to payment, property or other benefit by reason of the
survivorship rules established under ORS 112.570 to 112.590 must be:
(a) Mailed to the main office or home of a
payor or other third party by registered or certified mail, return receipt
requested; or
(b) Served upon the payor or other third
party in the manner provided by ORCP 7 for service of summons in a civil
action.
(3) Upon receipt of written notice of a
claim under subsection (2) of this section, a payor or other third party may
deposit any money or property that is subject to the claim with any court
conducting probate proceedings for one of the decedents’ estates. If probate
proceedings have not been commenced, the money or property may be deposited
with the court with probate jurisdiction in the county in which one of the
decedents resided. The court shall hold the funds or property and shall
determine the rights of all parties under the governing instrument. Deposits
made with the court under this subsection discharge the payor or other third
party from all claims for the value of amounts paid to or items of property
deposited with the court. [1999 c.131 §7]
Note:
See note under 112.570.
112.590
Protection of bona fide purchasers; personal liability of recipient.
(1) Unless the person has notice of the claim at the time the purchase, payment
or delivery is made, a person who purchases property for value, or who receives
payment, property or other benefit in full or partial satisfaction of a legally
enforceable obligation, is not liable to another person with a claim to the
payment, property or benefit by reason of the operation of the survivorship
rules established under ORS 112.570 to 112.590 and need not return the payment,
property or other benefit.
(2) A person who receives payment,
property, or other benefit to which the person is not entitled by reason of the
survivorship rules established under ORS 112.570 to 112.590 must return the
payment, property or other benefit if:
(a) The person was aware of a claim to the
payment, property or other benefit under the survivorship rules established
under ORS 112.570 to 112.590 at the time the purchase, payment or delivery was
made; or
(b) The person received the payment,
property or other benefit for no value.
(3) A person who receives any payment,
property or other benefit to which the person is not entitled because any part
of ORS 112.570 to 112.590 is preempted by federal law must return the payment,
property or other benefit if the person received the payment, property or other
benefit for no value.
(4) Any person who is required to return
any payment, property or other benefit under this section and who does not
return the payment, property or other benefit is personally liable to a person
with a right to the property under the survivorship rules established under ORS
112.570 to 112.590 or with a right to the property by reason of federal
preemption of all or part of the survivorship rules. [1999 c.131 §8]
Note:
See note under 112.570.
112.595
[Formerly 112.030; repealed by 1999 c.131 §11]
112.605
[1969 c.591 §72; repealed by 1999 c.131 §11]
112.615
[Formerly 112.040; repealed by 1999 c.131 §11]
112.625
[Formerly 112.060; repealed by 1999 c.131 §11]
112.635
[Formerly 112.070; repealed by 1999 c.131 §11]
112.645
[Formerly 112.080; repealed by 1999 c.131 §11]
112.650
[1975 c.480 §9 (enacted in lieu of 112.675); repealed by 2001 c.245 §19]
112.652
[1975 c.480 §2 (enacted in lieu of 112.675); 1981 c.55 §1; repealed by 2001
c.245 §19]
112.655
[1975 c.480 §3 (enacted in lieu of 112.675); 1981 c.55 §2; repealed by 2001
c.245 §19]
112.657
[1975 c.480 §4 (enacted in lieu of 112.675); 1981 c.55 §3; repealed by 2001
c.245 §19]
112.660
[1975 c.480 §5 (enacted in lieu of 112.675); 1981 c.55 §4; repealed by 2001
c.245 §19]
112.662
[1975 c.480 §6 (enacted in lieu of 112.675); repealed by 2001 c.245 §19]
112.665
[1975 c.480 §7 (enacted in lieu of 112.675); 1981 c.55 §5; repealed by 2001
c.245 §19]
112.667
[1975 c.480 §8 (enacted in lieu of 112.675); repealed by 2001 c.245 §19]
112.675
[1969 c.591 §77; repealed by 1975 c.480 §1 (112.650 to 112.667 enacted in lieu
of 112.675)]
DOWER
AND CURTESY ABOLISHED
112.685
Dower and curtesy abolished. Dower and
curtesy, including inchoate dower and curtesy, are abolished, but any right to
or estate of dower or curtesy of the surviving spouse of any person who died
before July 1, 1970, shall continue and be governed by the law in effect
immediately before that date. [1969 c.591 §78]
112.695
Statute of limitation for recovery of dower or curtesy.
No action or suit shall be brought after 10 years from the death of a decedent
to recover or reduce to possession curtesy or dower by the surviving spouse of
the decedent. [Formerly 113.090]
UNIFORM
DISPOSITION OF COMMUNITY PROPERTY RIGHTS AT DEATH ACT
112.705
Short title. ORS 112.705 to 112.775 may be cited as
the Uniform Disposition of Community Property Rights at Death Act. [1973 c.205 §11]
112.715
Application to certain property. ORS 112.705
to 112.775 apply to the disposition at death of the following property acquired
by a married person:
(1) All personal property, wherever
situated:
(a) Which was acquired as or became, and
remained, community property under the laws of another jurisdiction; or
(b) All or the proportionate part of that
property acquired with the rents, issues, or income of, or the proceeds from,
or in exchange for, that community property; or
(c) Traceable to that community property.
(2) All or the proportionate part of any
real property situated in this state which was acquired with the rents, issues
or income of, the proceeds from, or in exchange for, property acquired as or
which became, and remained, community property under the laws of another
jurisdiction, or property traceable to that community property. [1973 c.205 §1]
112.725
Rebuttable presumptions. In determining whether ORS
112.705 to 112.775 apply to specific property the following rebuttable
presumptions apply:
(1) Property acquired during marriage by a
spouse of that marriage while domiciled in a jurisdiction under whose laws
property could then be acquired as community property is presumed to have been
acquired as or to have become, and remained, property to which ORS 112.705 to
112.775 apply; and
(2) Real property situated in this state
and personal property wherever situated acquired by a married person while
domiciled in a jurisdiction under whose laws property could not then be
acquired as community property, title to which was taken in a form which
created rights of survivorship, is presumed not to be property to which ORS
112.705 to 112.775 apply. [1973 c.205 §2]
112.735
One-half of property not subject to testamentary disposition or right to elect
against will. Upon death of a married person,
one-half of the property to which ORS 112.705 to 112.775 apply is the property
of the surviving spouse and is not subject to testamentary disposition by the
decedent or distribution under the laws of succession of this state. One-half
of that property is the property of the decedent and is subject to testamentary
disposition or distribution under the laws of succession of this state. With respect
to property to which ORS 112.705 to 112.775 apply, the one-half of the property
which is the property of the decedent is not subject to the surviving spouse’s
right to elect against the will. [1973 c.205 §3]
112.745
Proceedings to perfect title. If the title
to any property to which ORS 112.705 to 112.775 apply was held by the decedent
at the time of death, title of the surviving spouse may be perfected by an
order of the probate court or by execution of an instrument by the personal
representative or the heirs or devisees of the decedent with the approval of
the court. Neither the personal representative nor the court in which the
decedent’s estate is being administered has a duty to discover or attempt to
discover whether property held by the decedent is property to which ORS 112.705
to 112.775 apply, unless a written demand is made by the surviving spouse or
the spouse’s successor in interest. [1973 c.205 §4]
112.755
Who may institute proceedings. If the title
to any property to which ORS 112.705 to 112.775 apply is held by the surviving
spouse at the time of the decedent’s death, the personal representative or an
heir or devisee of the decedent may institute an action to perfect title to the
property. The personal representative has no fiduciary duty to discover or
attempt to discover whether any property held by the surviving spouse is
property to which ORS 112.705 to 112.775 apply, unless a written demand is made
by an heir, devisee, or creditor of the decedent. [1973 c.205 §5]
112.765
Rights of purchaser. (1) If a surviving spouse has
apparent title to property to which ORS 112.705 to 112.775 apply, a purchaser
for value or a lender taking a security interest in the property takes interest
in the property free of any rights of the personal representative or an heir or
devisee of the decedent.
(2) If a personal representative or an
heir or devisee of the decedent has apparent title to property to which ORS
112.705 to 112.775 apply, a purchaser for value or a lender taking a security
interest in the property takes interest in the property free of any rights of
the surviving spouse.
(3) A purchaser for value or a lender need
not inquire whether a vendor or borrower acted properly.
(4) The proceeds of a sale or creation of
a security interest shall be treated in the same manner as the property
transferred to the purchaser for value or a lender. [1973 c.205 §6]
112.775
Application and construction. (1) ORS
112.705 to 112.775 do not affect rights of creditors with respect to property
to which ORS 112.705 to 112.775 apply.
(2) ORS 112.705 to 112.775 do not prevent
married persons from severing or altering their interests in property to which
ORS 112.705 to 112.775 apply.
(3) ORS 112.705 to 112.775 do not
authorize a person to dispose of property by will if it is held under
limitations imposed by law preventing testamentary disposition by that person.
(4) ORS 112.705 to 112.775 shall be so
applied and construed as to effectuate their general purpose to make uniform
the law with respect to the subject of ORS 112.705 to 112.775 among those
states which enact it. [1973 c.205 §§7,8,9,10]
DISPOSITION
OF WILLS
112.800
Definition for ORS 112.800 to 112.830. As used in
ORS 112.800 to 112.830, unless the context requires otherwise, “person” means a
natural person, a partnership, a corporation, a bank, a trust company and any
other organization or legal entity. [1989 c.770 §1]
Note:
112.800 to 112.830 were enacted into law by the Legislative Assembly but were
not added to or made a part of ORS chapter 112 or any series therein by
legislative action. See Preface to Oregon Revised Statutes for further
explanation.
112.805
Exclusive manner of disposing of wills; destroyed will not revoked.
(1) Any person having custody of a will has a duty to maintain custody of the
will and may not destroy or discard the will, disclose its contents to any
person or deliver the will to any person except as authorized by the testator
or as permitted by ORS 112.800 to 112.830.
(2) Nothing in ORS 112.800 to 112.830 bars
a testator from destroying, revoking, delivering to any person or otherwise
dealing with the will of the testator.
(3) A will destroyed in accordance with
ORS 112.800 to 112.830 shall not be revoked by virtue of such destruction and
its contents may be proved by secondary evidence. [1989 c.770 §§2,7,10]
Note:
See note under 112.800.
112.810
Duties of custodian of will. (1) Any
person having custody of a will:
(a) Shall deliver the will to the testator
upon demand from the testator, unless the person having custody of the will is
an attorney and is entitled to retain the will pursuant to ORS 87.430;
(b) May at any time deliver the will to
the testator;
(c) Upon demand from the conservator,
shall deliver the will to a conservator for the testator;
(d) Upon demand from the attorney-in-fact,
shall deliver the will to an attorney-in-fact acting under a durable power of
attorney signed by the testator expressly authorizing the attorney-in-fact to
demand custody of the will;
(e) May deliver the will to any attorney
licensed to practice law in Oregon willing to accept delivery of the will if
the person does not know or cannot ascertain, upon diligent inquiry, the
address of the testator; or
(f) Shall deliver the will to a court
having jurisdiction of the estate of the testator or to a personal
representative named in the will within 30 days after the date of receiving
information that the testator is dead.
(2) With respect to a will held in a safe
deposit box, compliance with ORS 708A.655 or 723.844 by the financial
institution, trust company, savings association or credit union within which
the box is located shall be deemed to be compliance with the requirements of
this section. [1989 c.770 §3; 1999 c.506 §3; 2009 c.541 §2]
Note:
See note under 112.800.
112.815
Conditions for disposal of will. An attorney
who has custody of a will may dispose of the will in accordance with ORS
112.820 if:
(1) The attorney is licensed to practice
law in the State of Oregon;
(2) At least 40 years has elapsed since
execution of the will;
(3) The attorney does not know and after
diligent inquiry cannot ascertain the address of the testator; and
(4) The will is not subject to a contract
to make a will or devise or not to revoke a will or devise. [1989 c.770 §4]
Note:
See note under 112.800.
112.820
Procedure for destruction of will; filing of affidavit; fee.
(1) An attorney authorized to destroy a will under ORS 112.815 may proceed as
follows:
(a) The attorney shall first publish a
notice in a newspaper of general circulation in the county of the last-known
address of the testator, if any, otherwise in the county of the principal place
of business of the attorney. The notice shall state the name of the testator,
the date of the will and the intent of the attorney to destroy the will if the
testator does not contact the attorney within 90 days after the date of the
notice.
(b) If the testator fails to contact the
attorney within 90 days after the date of the notice, the attorney may destroy
the will.
(c) Within 30 days after destruction of
the will, the attorney shall file with the probate court in the county where
the notice was published an affidavit stating the name of the testator, the
name and relationship of each person named in the will whom the testator
identified as related to the testator by blood, adoption or marriage, the date
of the will, proof of the publication and the date of destruction.
(d) The clerk of the probate court shall
charge and collect the fee established under ORS 21.145 for filing of the
affidavit.
(2) If a will has not been admitted to
probate within 40 years following the death of the testator, an attorney having
custody of the will may destroy the will without notice to any person or court.
[1989 c.770 §§5,6; 2003 c.737 §§56,57; 2005 c.702 §§65,66,67; 2011 c.595 §29]
Note:
See note under 112.800.
112.825
Liability for destruction of will. A person who
violates any provision of ORS 112.800 to 112.830 shall be liable to any person
injured by such violation for any damages sustained thereby. An attorney who
destroys a will in accordance with ORS 112.800 to 112.830 shall not be liable
to the testator or any other person for such destruction or disposal. [1989
c.770 §8]
Note:
See note under 112.800.
112.830
Court may order delivery of will. If it appears
to a court having jurisdiction of the estate of a decedent that a person has
custody of a will made by the decedent, the court may issue an order requiring
that person to deliver the will to the court. [1989 c.770 §9]
Note:
See note under 112.800.
_______________