The Comprehensive Guide to Probate, Trusts, Estate Planning, and Inheritance Litigation

Surviving Spouse Rights Oregon

Surviving spouses have important rights and benefits under Oregon law, including:

  • Intestate Share
  • Dwelling occupancy rights
  • Support Allowance
  • Elective Share rights
 

Learning about these widow’s rights is one of the first steps to navigating the Oregon probate process.

Surviving Spouse Rights in Oregon If There Is No Valid Will – Intestacy

When someone dies without a will in Oregon, they have died intestate.  This means that Oregon law will control the disposition of the estate.  A surviving spouse is entitled to receive an intestate share based upon who survives the decedent.

If the decedent has no surviving issue, or if decedent’s issue are all issue of the surviving spouse, the surviving spouse receives the entire intestate estate.

If the decedent leaves issue any one of whom is not also the issue of the surviving spouse, the surviving spouse is entitled to one-half of the net intestate estate. ORS §§ 112.025, 112.035.

The net intestate estate is defined as any part of the net estate that is not effectively disposed of by the will of the decedent. ORS § 112.015.

Surviving Spouse’s Right to An Elective Share – Election Against The Will

Under Oregon law, the legislature has enacted important statutes to protect surviving spouses from being disinherited.

Effective for deaths that occur on or after January 1, 2011, Oregon has amended the spousal elective share determination.  The new elective share statute considers the “augmented estate” in the election, which includes non-probate estate assets.  The spousal elective share in Oregon is determined by the length of time the spouse and the decedent were married to one another.  Pursuant to ORS § 114.605, the following table provides the elective share calculation for a surviving spouse:

If the decedent and the spouse were married to each other:  

The elective-share percentage is:

Less than 2 years

5% of the augmented 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

A surviving spouse’s right to an elective share is not automatic under Oregon law.  A surviving spouse must file a motion for the exercise of the elective share within nine months after the spouse dies. ORS § 114.610.

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. ORS § 114.625.

Surviving Spouse Allowances And Exemptions

Oregon law provides that a surviving spouse has rights to certain exemptions and allowances, including:

Occupation of dwelling:  The surviving spouse may occupy the dwelling until one year after death, or until one year after the termination of decedent’s life estate in the dwelling.  ORS 114.005.

Support allowance:  The surviving spouse also has the right to a support allowance.  The surviving spouse must petition for the allowance.  The amount of the allowance is within the discretion of the court, but must be in an amount and of a nature reasonably necessary for the welfare of the surviving spouse.  ORS 114.015.