What happens if one spouse disinherits the other? The answer, as with many complex legal questions, is that it depends. In Oregon, however, surviving spouses have the right to what is known as the spousal elective share.
Key Terms to Know
Before diving into the Oregon law on spousal elective shares, it might be helpful to know a few key terms:
- Augmented Estate: The property owned by the deceased person and a surviving spouse. Under Oregon law, the augmented estate includes the decedent’s probate estate, the decedent’s non-probate estate and the surviving spouse’s estate. The value of the augmented estate will be reduced by any enforceable claims made against the estate.
- Decedent: The person who has died.
- Domicile: A person’s residence. Specifically, the domicile is a person’s true and permanent home.
- Probate: A legal process, overseen by the court, in which an estate’s debts are paid and assets are distributed.
- Testate: With a will at death. A person who dies with a will is testate, and a person who dies without a will is intestate.
Right to Elective Share
Under Oregon law (114.600 to 114.725), a surviving spouse has the right to receive the elective share of the estate. This law applies if the decedent was domiciled in Oregon on the date of death.
The amount of the elective share is calculated as a percentage of the augmented estate, and the percentage is based on the number of years the spouse and the decedent were married. If the decedent and the surviving spouse were married for less than two years, for example, the surviving spouse is entitled to 5% of the augmented estate. This percentage increases for each year of marriage until reaching 15 years or more, in which case the surviving spouse is entitled to 33% of the augmented estate.
A surviving spouse who wants to exercise this right should file the necessary petitions and motions within nine months of the decedent’s date of death.
Although the elective share may seem justified in many cases, it may seem less reasonable if the decedent and the surviving spouse were estranged at the time of death.
The law reflects this. If the spouses were separated before the death, this separation may impact the elective share. This is true even if there was no legal separation.
Specifically, Oregon law establishes that, if the spouses were living apart at the time of the death, the court may deny the right to an elective share or reduce the amount of the elective share. When making a decision, the court may consider whether this was a first of subsequent marriage, the length of the separation, the cause of the separation, the contribution that the surviving spouse made to the property of the decedent and any other relevant circumstances.
Estate planning can be a complicated area of law. Simply creating a will may not be enough to ensure that your wishes are carried out. You also have to understand what the laws in your state require and what rights other people have.
Estate laws can also be complicated, but an estate planning attorney can help you navigate the issues. Contact Skinner Law.