Bill Text: OR SB385 | 2011 | Regular Session | Enrolled
Bill Title: Relating to the elective share of a surviving spouse; and declaring an emergency.
Spectrum: Unknown
Status: (Passed) 2011-06-09 - Effective date, June 9, 2011. [SB385 Detail]
Download: Oregon-2011-SB385-Enrolled.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
Enrolled
Senate Bill 385
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate Interim Committee on
Judiciary for Oregon State Bar Estate Planning Section and
Oregon Law Commission)
CHAPTER ................
AN ACT
Relating to the elective share of a surviving spouse; creating
new provisions; amending ORS 114.630, 114.635, 114.660,
114.665, 114.675 and 114.700; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
{ +
AUGMENTED ESTATE GENERALLY + }
SECTION 1. ORS 114.635 is amended to read:
114.635. { - (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. - }
{ + The augmented estate does not include:
(1) Any value attributable to future enhanced earning capacity
of either spouse;
(2) Any property that is irrevocably transferred before the
death of the decedent spouse;
(3) Any property that is transferred on or after the date of
the death of the decedent spouse with the written joinder or
written consent of the surviving spouse;
(4) 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; or
(5) Any property that is held by either spouse solely in a
fiduciary capacity. + }
{ +
DECEDENT'S NONPROBATE ESTATE + }
SECTION 2. ORS 114.660 is amended to read:
Enrolled Senate Bill 385 (SB 385-INTRO) Page 1
114.660. For purposes of ORS 114.600 to 114.725, a decedent's
nonprobate estate consists of the property described in ORS
114.665 that is not included in the decedent's probate estate and
that does not constitute a { - probate - } transfer to the
decedent's surviving spouse. { + The value of the decedent's
nonprobate estate is reduced by all debts and liabilities of the
decedent that are not paid in probate, and by all costs of
administering the decedent's nonprobate estate that are incurred
for the purpose of settling claims against the nonprobate estate
and distributing the nonprobate estate property to the persons
entitled to that property. + }
SECTION 3. ORS 114.665 is amended to read:
114.665. (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 { + , but only to the
extent that the decedent could have designated the decedent, or
the spouse of the decedent, as the 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.
SECTION 4. ORS 114.630 is amended to read:
114.630. (1) Except as otherwise provided in ORS 114.600 to
114.725, 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 ORS 114.650.
(b) The decedent's nonprobate estate as described in ORS
114.660 and 114.665.
(c) The surviving spouse's estate, as described in ORS 114.675.
{ - (d) The decedent's probate transfers to the surviving
spouse, as described in ORS 114.685. - }
{ - (e) The decedent's nonprobate transfers to the surviving
spouse, as described in ORS 114.690. - }
(2) The value attributable to any property included in the
augmented estate under ORS 114.600 to 114.725 must be reduced by
the amount of all enforceable claims against the property and all
Enrolled Senate Bill 385 (SB 385-INTRO) Page 2
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
ORS 114.600 to 114.725.
(5) In no event may the value of property be included in the
augmented estate more than once.
{ +
SURVIVING SPOUSE'S ESTATE + }
SECTION 5. ORS 114.675 is amended to read:
114.675. (1) For purposes of ORS 114.600 to 114.725, a
surviving spouse's estate is:
{ - (a) All property of the spouse other than decedent's
probate transfers to the surviving spouse under ORS 114.685, as
determined on the date of the decedent's death. - }
{ - (b) - } { + (a) + } The decedent's probate transfers to
the spouse, as described in ORS 114.685.
{ + (b) The decedent's nonprobate transfers to the spouse, as
described in ORS 114.690.
(c) All other property of the spouse, as determined on the date
of the decedent's death. + }
{ - (c) - } { + (d) + } Any property that would have been
included under paragraph (a) { - or - } { + , + } (b) { + or
(c) + } 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 { +
created by the decedent spouse + }, 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.
Enrolled Senate Bill 385 (SB 385-INTRO) Page 3
(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
{ + created by the decedent spouse + } 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.
{ + (e) The value of the surviving spouse's beneficial
interest in a trust other than a trust described in paragraphs
(a) to (d) of this subsection shall be determined under the
provisions of ORS 114.630 (3) and (4). + }
{ +
PAYMENT OF ELECTIVE SHARE + }
SECTION 6. ORS 114.700 is amended to read:
114.700. (1) { - The following amounts are - } { + The
surviving spouse's estate, as described in ORS 114.675, shall be
+ }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 ORS
114.675. - }
{ - (b) The amount of all of the decedent's probate transfers
to the surviving spouse described in ORS 114.685. - }
{ - (c) The amount of all of the decedent's nonprobate
transfers to the surviving spouse described in ORS 114.690. - }
(2) If after application of the { - amounts specified in - }
{ + surviving spouse's estate under + } 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
ORS 114.600 to 114.725.
(3) { + Unless otherwise provided by a will, trust or other
instrument executed by the decedent spouse:
(a) + } 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) - } { + (b) + } 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.
{ + (c) + } 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
Enrolled Senate Bill 385 (SB 385-INTRO) Page 4
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) - } { + (4) + } 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
ORS 114.600 to 114.725.
{ - (6) - } { + (5) + } In any proceeding described in ORS
114.610, the court may allocate the cost of storing and
maintaining property included in the augmented estate pending
distribution of the property.
{ +
APPLICABILITY + }
SECTION 7. { + The amendments to ORS 114.630, 114.635,
114.660, 114.665, 114.675 and 114.700 by sections 1 to 6 of this
2011 Act apply to the surviving spouses of all decedents who die
on or after the effective date of this 2011 Act. + }
{ +
CAPTIONS + }
SECTION 8. { + The unit captions used in this 2011 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 2011 Act. + }
{ +
EMERGENCY CLAUSE + }
SECTION 9. { + This 2011 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2011 Act takes effect on its
passage. + }
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Passed by Senate April 4, 2011
.............................................................
Robert Taylor, Secretary of Senate
.............................................................
Peter Courtney, President of Senate
Passed by House May 24, 2011
.............................................................
Bruce Hanna, Speaker of House
.............................................................
Arnie Roblan, Speaker of House
Enrolled Senate Bill 385 (SB 385-INTRO) Page 5
Received by Governor:
......M.,............., 2011
Approved:
......M.,............., 2011
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2011
.............................................................
Kate Brown, Secretary of State
Enrolled Senate Bill 385 (SB 385-INTRO) Page 6
