Spousal Elective Share Requirements in Oregon

At a glance

Requirements one by one

Marriage scale and augmented estate

Oregon does not use one flat percentage. ORS § 114.605 starts at 5% for a marriage shorter than two years, then adds two percentage points at each yearly tier until the share reaches 33% for a marriage of at least 15 years.

The percentage applies to an augmented estate, not just probate property. ORS §§ 114.630, 114.650, 114.660, 114.665, 114.675, 114.685, and 114.690 combine:

• the decedent's probate property left after claims and administration expenses;
• specified property passing to other people by survivorship, POD/TOD or other beneficiary designation, and property the decedent could recover by revocation;
• probate and nonprobate property passing to the surviving spouse; and
• the surviving spouse's other property on the date of death, including property the spouse later disclaims.

That last category matters: the survivor's own estate is part of both the calculation and the first source used to satisfy the share.

Exclusions and valuation

ORS §§ 114.630 and 114.635 reduce included property by enforceable claims and encumbrances and exclude future earning capacity, property irrevocably transferred before death, postdeath transfers made with the survivor's written joinder or consent, community property, and property held only as a fiduciary. The same property cannot be counted twice, and valuation follows the value that federal estate-and-gift-tax law would use for a gratuitous transfer to an unrelated person.

Life insurance has an asymmetric treatment. ORS § 114.665 excludes the present value of a policy from the decedent's nonprobate estate, but ORS § 114.690 counts insurance proceeds paid to the surviving spouse as a transfer to that spouse. Federal Social Security property is excluded.

Filing routes, service, and withdrawal

ORS §§ 114.610 and 114.720 provide three routes, all subject to the same nine-month-after-death deadline:

• open probate by filing a personal-representative petition together with an election motion;
• file an election motion in an existing probate; or
• file a separate election petition in circuit court.

For the existing-probate motion, the spouse must serve the personal representative, everyone entitled to information under ORS § 113.145, and known distributees and augmented-estate recipients who can be located with reasonable efforts. The separate petition has a closely related service list and must be consolidated if probate is later opened. A motion may be withdrawn before the court grants it; a separate petition may be withdrawn before judgment.

Waiver, payment, and separation

ORS § 114.620 allows a whole or partial waiver before or after marriage through a written contract, agreement, or waiver signed by the surviving spouse. Unless the agreement says otherwise, language waiving “all rights” in the other spouse's property or estate, or a complete property settlement made after or in anticipation of separation or divorce, waives the elective share and specified succession benefits.

Under ORS §§ 114.700 and 114.705, the survivor's estate is applied first. Any shortfall is then charged proportionately to the decedent's probate and nonprobate estates and apportioned among recipients. A covered nonprobate recipient may satisfy the contribution by returning adequate property or paying its value.

Living apart at death does not create an automatic fixed result. ORS § 114.725 lets the court deny or reduce the share after considering the marriage history, the survivor's contributions, the length and cause of the separation, and other relevant circumstances.

What trips people up

• The survivor's own property enters the calculation. This is not a simple percentage of what the decedent left.
• Nine months is the statutory outside clock. The current election sections state no extension procedure.
• Irrevocable predeath transfers are excluded. Oregon's augmented estate does not sweep in every lifetime transfer.
• Separation gives the court discretion. Living apart can reduce the share to zero even without a legal-separation judgment.

Common questions

What if the decedent was not domiciled in Oregon? ORS § 114.600 says the law of the decedent's domicile at death governs any elective-share claim to Oregon property.

Can an agent or guardian file for the spouse? Yes. ORS § 114.625 permits a conservator, guardian, or agent acting under a power of attorney to claim on the spouse's behalf.

Must a nonprobate recipient pay cash? Not necessarily. ORS § 114.705 lets a covered recipient return adequate property instead of paying its value.

Is spouse-and-child support included inside the percentage? No. ORS § 114.600 says amounts awarded under ORS § 114.015 are additional to the elective share.

Statutes and sources

• ORS § 113.145 — the devisees, heirs, and other petition-listed persons entitled to probate information and therefore included in the elective-share service cross-reference. Official Oregon Revised Statutes Chapter 113 (accessed 2026-08-16).
• ORS § 114.015 — court-ordered support for the spouse and dependent children. Official Oregon Revised Statutes Chapter 114 (accessed 2026-08-16).
• ORS §§ 114.600, 114.605, and 114.610 — eligibility, additional support, marriage-length scale, deadline, filing routes, service, withdrawal, and adjudication. Official Oregon Revised Statutes Chapter 114 (accessed 2026-08-02).
• ORS §§ 114.615, 114.620, and 114.625 — payment calculation, waiver, and who may exercise the right. Official Chapter 114 (accessed 2026-08-02).
• ORS §§ 114.630, 114.635, 114.650, 114.660, and 114.665 — augmented-estate composition, exclusions, valuation, and the decedent's probate and nonprobate estates. Official Chapter 114 (accessed 2026-08-02).
• ORS §§ 114.675, 114.685, and 114.690 — the surviving spouse's estate and probate/nonprobate transfers to the spouse. Official Chapter 114 (accessed 2026-08-02).
• ORS §§ 114.700 and 114.705 — payment priority, proportional allocation, recipient liability, and return-of-property option. Official Chapter 114 (accessed 2026-08-02).
• ORS §§ 114.720 and 114.725 — separate-petition procedure, consolidation, withdrawal, and separation discretion. Official Chapter 114 (accessed 2026-08-02).