Legal Question in Wills and Trusts in Oregon
In the State of of Oregon, can an individual in his will leave 1/3 of his estate to each of his adult children and the final 1/3 to his wife? All their assets are in both of their names and this is a second marriage with no prenuptual agreement.
1 Answer from Attorneys
A will can only transfer property that does not transfer outside of probate. If both names of a married couple are on bank accounts, real estate, etc., then in most cases, that property would go to the survivor of the couple. A will cannot change that.
Oregon now has a graduated spousal elective share, which allows the surviving spouse to elect against the will if the will does not give the surviving spouse at least as much as she would get from the elective share. It starts below 1/3 and ends above that amount, depending on the length of the marriage.
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