(1) The executor of an estate containing property that the executor seeks to qualify as Oregon special marital property under ORS 118.013 shall make an election under this subsection in order for the property to be Oregon special marital property. The election shall be made:
(a) By attaching a statement to the inheritance tax return for the estate of the decedent that identifies the trust or other property interest that constitutes Oregon special marital property and that affirms that the identified property meets the requirements of Oregon special marital property under ORS 118.013 and will be administered as required under ORS 118.013; or
(b) In such other manner as the Department of Revenue prescribes by rule.
(2) For a trust or other property interest described in ORS 118.013 (3), in order for any portion of the trust or other property interest to be Oregon special marital property, in addition to the election of the executor described in subsection (1) of this section, the surviving spouse and each beneficiary who is living at the time of the election and who may be eligible for a distribution from the trust or other property interest during the lifetime of the surviving spouse shall make an election and written consent that is in substantially the following form:
______________________________________________________________________________
CONSENT TO ESTABLISHMENT OF
OREGON SPECIAL MARITAL PROPERTY
(a) ELECTION TO BE SIGNED BY ALL BENEFICIARIES EXCEPT THE SURVIVING SPOUSE: Each of the undersigned acknowledge and consent to a portion of the ____________ (name of trust or other property interest) being set aside as a separate share or trust in order to qualify for the Oregon special marital property election in accordance with ORS 118.013, for the primary purpose of reducing or eliminating the Oregon inheritance tax due on the estate of ____________ (name of decedent). The undersigned together with the surviving spouse constitute all of the persons living on the date of this election who may be entitled to a distribution during the lifetime of the surviving spouse from the ___________ (name of trust or other property interest). Each of the undersigned, both on behalf of the undersigned and on behalf of the unborn lineal descendants of the undersigned, irrevocably agrees to release all rights to distributions from the Oregon special marital property during the lifetime of the surviving spouse. Each of the undersigned agrees that all other provisions of the _________ (name of trust or other property interest) shall remain in effect and that, upon the death of the surviving spouse, any remaining Oregon special marital property shall be distributed as otherwise provided in the trust or other property interest.
Signature of: _________(beneficiary)
Signature of: _________(beneficiary)
(b) ELECTION TO BE SIGNED BY THE SURVIVING SPOUSE: I am the surviving spouse of ____________ (name of decedent). I acknowledge and consent to a portion of the ____________ (name of trust or other property interest) being set aside as a separate share or trust in order to qualify as Oregon special marital property under ORS 118.013, for the primary purpose of reducing or eliminating the Oregon inheritance tax due on the estate of ____________ (name of decedent). I, together with all of the other individuals executing the election in accordance with ORS 118.013, constitute all of the persons living on the date of this election who may be entitled to a distribution from the Oregon special marital property to which this election applies and who might be entitled to a distribution during my lifetime. I agree that all other terms, conditions and provisions that apply to the ____________ (name of trust or other property interest) shall apply to the Oregon special marital property to which this election applies, and that upon my death, any remaining Oregon special marital property shall be distributed as otherwise provided in the trust or other property interest.
Signature of: ____________
(surviving spouse)
SUBSCRIBED AND SWORN TO before me this _____ day of _____, 2_____.
_______________
Notary Public of Oregon
My commission expires: _________
______________________________________________________________________________
(3) Elections made under this section are irrevocable.
(4) The custodial parent or court appointed guardian of a minor beneficiary may sign the election on behalf of the minor beneficiary and the unborn lineal descendents of the minor beneficiary. [2005 c.124 §3]
Note: Section 5, chapter 124, Oregon Laws 2005, provides:
Sec. 5. (1) An Oregon inheritance tax return that is filed with respect to a death occurring on or after January 1, 2002, and before the effective date of this 2005 Act [November 4, 2005], may be amended to make the elections described in sections 2 [118.013] and 3 [118.016] of this 2005 Act on or before the later of:
(a) December 31, 2006; or
(b) The deadline otherwise prescribed by law for the filing of an amended inheritance tax return.
(2) An inheritance tax return that is originally filed on or after the effective date of this 2005 Act may be amended to make the elections described in sections 2 and 3 of this 2005 Act as otherwise prescribed by law.
(3)(a) If a refund is made as the result of the filing of an amended return that is allowable because of the date for filing amended returns under subsection (1)(a) of this section, the refund may not bear interest, unless the refund is made on or after March 1, 2007.
(b) A refund described in paragraph (a) of this subsection that is made on or after March 1, 2007, and attributable to the elections described in sections 2 and 3 of this 2005 Act shall bear interest as prescribed in ORS 305.220, for the period beginning March 1, 2007, and ending on the date the refund is made.
(4) Once made, an election described in sections 2 and 3 of this 2005 Act is irrevocable. [2005 c.124 §5]
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