(1) 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, but the elective share shall be reduced by the value of the following property given to the surviving spouse under the will of the decedent:
(a) Property given outright;
(b) The present value of legal life estates; and
(c) The present value of the right of the surviving spouse to income or an annuity, or a right of withdrawal, from any property transferred in trust by the will that is capable of valuation with reasonable certainty without regard to the powers forfeited under subsection (2) of this section.
(2) Except as to property applied under subsection (1) of this section to reduce the elective share, an election to take under this section forfeits any other right to take under the will and under the law of intestate succession. If the will would otherwise create a power of appointment in the surviving spouse, the spouse by electing to take under this section retains the power only if it is not a general power of appointment as defined in subsection (4) of this section and the testator has not provided otherwise, but the spouse forfeits any general power of appointment. A power to pay more than the income or annuity or withdrawals, the value of which reduced the elective share under subsection (1)(c) of this section, or to apply additional principal or income in behalf of the electing spouse, may not be exercised in favor of the electing spouse.
(3) The right to elect may be barred under ORS 114.115, the share limited by ORS 114.125 or the right denied or the share reduced under ORS 114.135.
(4) A general power of appointment is one that the donee may exercise in favor of the donee, the estate of the donee, the creditors of the donee or the creditors of the estate of the donee, during lifetime or at death, and includes one under which the donee may convey or transfer ownership of the property to whomever the donee may choose. A power to consume, invade or appropriate property for the benefit of the donee that is limited by an ascertainable standard relating to the health, education, support or maintenance of the donee shall not be deemed a general power of appointment. [1969 c.591 §112; 1997 c.99 §22]Section: Previous 114.050 114.055 114.060 114.065 114.070 114.075 114.085 114.105 114.110 114.115 114.120 114.125 114.130 114.135 114.140 Next
Last modified: August 7, 2008