Legal Question in Wills and Trusts in Oregon

Tough situation. Under Oregon law, a surviving spouse has the absolute legal right to "elect" to take the inheritance share as provided to her in her husband�s will OR twenty-five percent (25%) of the estate (regardless of what the will says).

So if the husband�s will says wife gets nothing, she would most likely exercise her legal right to take the �surviving spouse�s elective share,� which is 25% of the estate.

Conversely, if the husband�s will says the wife gets MORE than 25% (or perhaps 100%), she would of course elect to take pursuant to the will, rather than the 25% elective share.

However, the �elective share� law can be avoided IF --- and only if --- the wife voluntarily signs a written agreement �waiving� her right to claim the elective share.

ORS 114.105. If a decedent is domiciled in this state at the time of death and dies testate, the surviving spouse of the decedent has a right to elect to take the share provided by this section. The elective share consists of one-fourth of the value of the net estate of the decedent.

ORS 114.115. The right of the surviving spouse to elect under ORS 114.105 may be barred by the terms of a written agreement signed by both spouses. The agreement may be entered into before or after marriage.

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LAWRENCE D. GORIN

http://ldgorin.justia.net/index.html

Law Offices of L.D. Gorin

521 S.W. Clay St., Suite 205

Portland, Oregon 97201

Telephone: 503.224.8884

Fax: 503.226.1321

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