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Recent Legislation: Elective Spouse Share

From time to time we will publish recent cases and legislation: 

House Bill 3077 (pdf)

House Bill 3077 completely revamps the spousal elective share statute in Oregon. Oregon is one of several states to enact a more modern elective share statute which attempts to account for the increasingly prevailing use of trusts and other mechanisms that avoid probate and thereby limit the funds that a spouse can reach through an elective share statute. First, the statute sets out the “augmented estate” which includes probate and nonprobate assets of the decedent as well as the surviving spouse’s assets. Then, the spouse can elect to take a percentage of the augmented estate. The percentage the spouse can receive is based on how many years the couple was married, ranging from 5% for marriages under 2 years to 33% for marriages that continued for 15 years or more. The remainder of the Bill addresses procedural requirements for making an election as well as the effect such an election has on other gifts in the decedent’s will.