Oregon Surviving Spouse Rights

Oregon gives a surviving spouse a real elective share. ORS 114.605(2) sets it on a sliding scale, from 5 percent of the augmented estate where the couple were married less than two years up to 33 percent at fifteen years or more, and ORS 114.610 allows nine months from the death to claim it. A will that leaves the spouse nothing does not end the question.

Two features decide most Oregon cases, and the percentage is neither of them. The augmented estate reaches well past probate, and ORS 114.700(1) spends the survivor's own property first. This page covers who may elect, how the percentage is fixed, what lands in the augmented estate, where the money actually comes from, the nine-month clock nobody has to warn a survivor about, and the four ways the right disappears. Every rule below was read at the Oregon Revised Statutes, 2025 Edition, on August 25, 2026. It is general information about Oregon law rather than advice about one estate. Take a live question to the court handling the file or to a licensed Oregon attorney.

The Election Covers Deaths On or After January 1, 2011

ORS chapter 114 prints a division heading above ORS 114.600 that reads, in full capitals, "ELECTIVE SHARE FOR DECEDENTS WHO DIE ON OR AFTER JANUARY 1, 2011." The regime came from Oregon Laws 2009, chapter 574, and the note Legislative Counsel prints under ORS 114.620 gives that act's effective date as January 1, 2011. Anything describing an Oregon spousal claim written before then describes a different statute.

Two threshold rules sit in ORS 114.600 itself, and they run in opposite directions. Subsection (1) opens the election only where "a decedent is domiciled in this state on the decedent's date of death, and the decedent is survived by a spouse." Subsection (3) closes the other case: where a decedent dies while domiciled outside Oregon, any right of a surviving spouse to take an elective share in property located in Oregon "is governed by the law of the decedent's domicile at death." An Idaho resident who owned a rental house in Bend produces no Oregon election.

Registered domestic partners are inside the regime by a different route. ORS 106.340(1), part of the Oregon Family Fairness Act, grants any privilege, immunity, right or benefit that a statute gives a person because that person is or was married to a partner in a domestic partnership "on equivalent terms, substantive and procedural." The elective share is such a right.

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The Percentage Comes From the Length of the Marriage

ORS 114.605(1) does the arithmetic in one sentence. The amount of the elective share is a dollar figure found by multiplying the augmented estate by the percentage in the section. That percentage is fixed by one variable, in the fifteen-row schedule at ORS 114.605(2):

The couple were married to each other	Elective-share percentage
Less than 2 years	5% of the augmented estate
2 years but less than 3 years	7%
3 years but less than 4 years	9%
4 years but less than 5 years	11%
5 years but less than 6 years	13%
6 years but less than 7 years	15%
7 years but less than 8 years	17%
8 years but less than 9 years	19%
9 years but less than 10 years	21%
10 years but less than 11 years	23%
11 years but less than 12 years	25%
12 years but less than 13 years	27%
13 years but less than 14 years	29%
14 years but less than 15 years	31%
15 years or more	33% of the augmented estate

Nothing else moves the number. Whether the decedent left a will, whether there are children, whether the children belong to both spouses, and how the property was titled all sit outside the schedule. The statute measures "the length of time the spouse and decedent were married to each other" and prints no rule for a marriage broken by a divorce and then remade, so a survivor in that position needs a lawyer rather than a table.

The Augmented Estate Reaches Past Probate

ORS 114.630(1) builds the augmented estate from three pools of property, "whether real or personal, movable or immovable, or tangible or intangible, wherever situated":

The decedent's probate estate, described in ORS 114.650. That is estate property subject to probate and available for distribution after claims and expenses of administration. It expressly includes property that could be handled by a simple estate affidavit under ORS 114.505 to 114.560, and it expressly excludes anything that reaches the surviving spouse as a probate transfer under ORS 114.685.
The decedent's nonprobate estate, described in ORS 114.660 and ORS 114.665.
The surviving spouse's estate, described in ORS 114.675.

ORS 114.665 is the section that catches people out. A decedent's nonprobate estate takes in the fractional interest the decedent held in any form of survivorship tenancy, to the extent it passed to a surviving tenant who is not the spouse. It takes in an ownership interest held "under a payable on death designation or deed, under a transfer on death registration or in co-ownership registration with a right of survivorship," which is how an Oregon transfer on death deed lands inside the calculation. It takes in property the decedent had power to name a beneficiary for, to the extent the decedent could have named the decedent or the spouse. And under subsection (4), it takes in "any property that immediately before death the decedent could have acquired by the exercise of a revocation," which reaches a funded revocable living trust.

One asset sits outside. ORS 114.665(5) says a decedent's nonprobate estate "does not include the present value of any life insurance policy payable on the death of the decedent." Hold that beside ORS 114.690(1)(c), which counts "insurance proceeds payable to the surviving spouse by reason of the death of the decedent" as a nonprobate transfer to the spouse. Read together, a policy paid to a child does not enlarge the pool the share is measured against, while the same policy paid to the survivor lands on the survivor's side of the ledger and shrinks what the election delivers.

Valuation follows four rules in ORS 114.630. Subsection (2) reduces every included asset by enforceable claims against it and encumbrances on it, and routes any marital estate tax deduction to the spouse through ORS 116.343(2). Subsection (3) counts the present value of trusts, life insurance settlement options, annuities, pensions, disability compensation, death benefits and retirement plans, "exclusive of the federal Social Security Act." Subsection (4) values property the way federal estate and gift tax law would value a gift to an unrelated person. Subsection (5) bars counting the same value twice.

ORS 114.635 then lists five exclusions: future enhanced earning capacity of either spouse, property irrevocably transferred before the death, property transferred with the written joinder or consent of the surviving spouse, community property under ORS 112.705 to 112.775 or under the law where the property sits, and property either spouse holds solely as a fiduciary. Read the second one twice. The section prints no lookback window, so a transfer made irrevocable a month before the death sits outside the augmented estate on the same terms as one made thirty years earlier.

The Survivor's Own Property Gets Spent First

Here is the rule that decides more Oregon elections than the percentage does. ORS 114.700(1) says the surviving spouse's estate "shall be applied first to satisfy the dollar amount of the elective share and to reduce or eliminate any contributions due from the decedent's probate estate and recipients of the decedent's nonprobate transfers to others."

ORS 114.675(1) builds that spouse's estate from four sources: the decedent's probate transfers to the spouse under ORS 114.685, the decedent's nonprobate transfers to the spouse under ORS 114.690, "all other property of the spouse, as determined on the date of the decedent's death," and anything that would have fallen in one of those three but for a disclaimer the spouse signed after the death. The third item is the one people miss. A survivor's own savings, a house the survivor owned before the marriage, and the survivor's retirement account all count, and disclaiming a gift to escape the arithmetic does not work.

Trusts get their own percentages in ORS 114.675(2). A trust that must pay all income to the survivor for life and over which the survivor holds a general power of appointment exercisable alone counts at 100 percent of corpus. A trust the decedent created that must pay all income to the survivor for life, where principal can be reached only by the trustee or the spouse and only for health, education, support or maintenance, also counts at 100 percent. A trust the decedent created that must pay all income to the survivor for life where neither the trustee nor the spouse can distribute principal to anyone counts at 50 percent.

ORS 114.615 tells the court to weigh all five values together, and to order a payment only where the survivor's estate plus the probate and nonprobate transfers to the survivor fall short of the elective share amount. When they do fall short, ORS 114.700(2) reaches the decedent's probate estate and the decedent's nonprobate estate, and subsection (3) makes the two bear proportionate liability and apportions the burden among the recipients of each in proportion to what they received. ORS 116.133(2) carves this out of the ordinary abatement order, so the election does not queue behind residuary and general devises the way an ordinary shortfall does.

ORS 114.705 limits who can be asked to contribute to two classes: an original recipient of the decedent's nonprobate estate, and someone who took nonprobate property from an original recipient for less than fair consideration, to the extent that person still holds it or its proceeds. A contributing recipient may hand back property or pay its value. ORS 114.710 lets the survivor or any recipient ask for a protective order against transfers of augmented estate property, and lets a recipient deposit a determined contribution with the court to be discharged.

Nine Months, and Nobody Has to Send a Reminder

ORS 114.610(1) gives three ways to claim, and every one of them runs the same nine months from the date of death:

Petition plus motion. A petition for appointment of a personal representative filed together with a motion to exercise the election, within nine months after the spouse dies.
Motion in an open probate. A motion filed in a probate proceeding already commenced under ORS 113.035, not later than nine months after the death. The statute requires that motion to be served on the personal representative, on everyone entitled to information under ORS 113.145, and on all distributees and recipients of parts of the augmented estate the survivor can locate with reasonable effort.
Standalone petition. A petition under ORS 114.720(1), filed within nine months after the death.

Which of the three fits a particular estate, and whether electing is worth doing at all, depends on facts this page cannot see. The election is adversarial in substance: it reallocates property away from people the will or the intestacy rules would otherwise pay. A surviving spouse weighing it should take the question to a licensed Oregon attorney well inside the nine months.

Now the part that costs people the claim. The information a personal representative must deliver or mail under ORS 113.145 carries two statutory warnings when they apply: a four-month bar on contesting the will under ORS 113.075, and a four-month window under ORS 112.049 for a parental forfeiture. It carries no warning about the election. The word "elective" does not appear anywhere in ORS chapter 113, 2025 Edition, and neither does a cross-reference to ORS 114.610. A surviving spouse who waits for a notice about the nine months waits for a notice Oregon never asks anyone to send. Read this beside the rest of the Oregon probate deadlines.

A few mechanics round the procedure out. ORS 114.625 lets the survivor claim personally, or lets a conservator, a guardian, or an agent acting under a power of attorney claim on the survivor's behalf. ORS 114.600(1) requires the motion or petition to be filed before the surviving spouse dies, and where it was filed in time and the survivor then dies before payment, the personal representative of the survivor's estate may carry it through. A motion or petition can be withdrawn any time before the court grants it. ORS 114.720(1) fixes venue by ORS 113.015, applies the Oregon Rules of Civil Procedure, and lets any party ask for the pleadings to be sealed.

The filing fee for that standalone petition is the ORS 21.170 probate scale, charged on the value of the nonprobate estate: $278 where the value is under $50,000, $591 from $50,000 to under $1 million, $882 from $1 million to under $10 million, and $1,176 at $10 million or more. ORS 21.170(5) applies the same scale in the six Oregon county courts that hold probate jurisdiction. A ruling on a motion or petition for elective share is a limited judgment under ORS 111.275(1)(e), which means it can be appealed without waiting for the estate to close.

Four Ways the Election Goes Away

A signed waiver. ORS 114.620(1) lets the right of election be waived wholly or partly, before or after the marriage, by a written contract, agreement or waiver signed by the surviving spouse. Subsection (2) does the heavy lifting: an agreement that waives all rights in the property or estate of a present or prospective spouse "using the phrase 'all rights' or other equivalent language," or a complete property settlement made after or in anticipation of separation or divorce, waives the elective share and renounces benefits that would otherwise pass by intestate succession or under any will executed before that agreement. The note under the section preserves pre-2011 prenuptial and postnuptial waivers unless a court finds them unenforceable under the section's own standards.

Living apart at the death. ORS 114.725 lets the court deny the elective share outright or cut it to an amount the court finds reasonable and proper where the decedent and the surviving spouse were living apart when the decedent died, "whether or not there was a judgment of legal separation." The court weighs whether the marriage was a first or a later one for either spouse, what the survivor contributed to the decedent's property in services or transfers, the length and cause of the separation, and any other relevant circumstance.

The nine months running out. ORS 114.610 states one deadline three times and provides no extension, no tolling clause and no good-cause exception.

Not surviving by 120 hours. ORS 112.572 says that where the right to elect an interest in property depends on whether a person survived another person's death, that person is deemed to have died first unless clear and convincing evidence shows survival by at least 120 hours. The exceptions in ORS 112.586 turn mostly on what a governing instrument says about simultaneous deaths, so they rarely reach a statutory election.

One related question has no printed answer. ORS 112.465(1) treats a slayer or an abuser of the decedent as having predeceased for property passing "by intestate succession, by will, by transfer on death deed, by trust, or otherwise." It does not name the elective share, and the phrase "elective share" appears nowhere in ORS chapter 112. How the two fit together is a question for the court rather than a rule you can read off the page.

What Oregon Does Not Give a Surviving Spouse

Four protections that exist elsewhere are absent here, and a page written from another state's template will hand a reader all four.

No probate homestead and no homestead allowance. ORS 111.005 defines the Oregon probate law as chapters 111, 112, 113, 114, 115, 116 and 117. The word "homestead" appears zero times across all seven in the 2025 Edition. Oregon's homestead is a creditor exemption under ORS 18.395, and it gives a survivor no interest in the house.
No exempt-property set-aside. The Uniform Probate Code trio of homestead allowance, exempt-property allowance and family allowance has no Oregon counterpart. What the family gets instead is court-ordered support and a year in the dwelling, covered below.
No dower and no curtesy. ORS 112.685 abolished both, "including inchoate dower and curtesy."
No community property, and no election against the half that is. Oregon is a separate property state. Where property traced to another jurisdiction's community property comes here under ORS 112.705 to 112.775, ORS 112.735 gives the survivor half outright and then says the decedent's half "is not subject to the surviving spouse's right to elect against the will." ORS 114.635(4) says the same thing from the other side by excluding community property from the augmented estate. The tax side of that inheritance sits in the Oregon step-up in basis guide.

The Claims That Sit Beside the Election

The election is one of several things a surviving spouse can hold at once, and Oregon says so in a single sentence. ORS 114.600(2): any amounts received under ORS 114.015 "are in addition to the elective share provided for in ORS 114.600 to 114.725." Court-ordered support does not count as an advance on the election and does not reduce it. That support, together with the one-year right under ORS 114.005 to keep living in the decedent's principal dwelling, is covered in support for the spouse and children.

Where there is no will, the election is usually beside the point, because the intestate spousal share is already larger. ORS 112.035 gives the surviving spouse the entire net intestate estate where the decedent left no descendant. ORS 112.025 gives the entire net intestate estate where every surviving descendant of the decedent is also a descendant of the survivor, and one-half where any of them is not.

Two will rules can change the picture before anyone reaches the election. ORS 112.305 revokes a will by the testator's later marriage where the testator is survived by a spouse, subject to three exceptions: the will shows it was not to be revoked or was drafted in contemplation of the marriage, the couple signed a written contract before the marriage that either provides for the spouse or says the spouse takes nothing, or the testator executed the will after registering a domestic partnership and later married that partner. ORS 112.315 runs the other way: unless the will evidences a different intent of the testator, a divorce or annulment revokes every provision in favor of the former spouse and any nomination of that former spouse as personal representative. Like the marriage rule above it, this is a default the will can displace, not an absolute. The Oregon will requirements guide covers execution and revocation in full.

A surviving spouse also sits high on the appointment list. ORS 113.085(1)(b) puts the surviving spouse, or the survivor's nominee, second only to the personal representative named in the will, on the condition that the surviving spouse is a distributee of the estate. Letters testamentary walks through what the appointment involves, and the Oregon probate guide covers the case from filing to closing.

Frequently Asked Questions

Does Oregon have an elective share for a surviving spouse?

Yes. ORS chapter 114 prints a division headed ELECTIVE SHARE FOR DECEDENTS WHO DIE ON OR AFTER JANUARY 1, 2011, and ORS 114.600(1) lets the surviving spouse of a decedent who was domiciled in Oregon at death elect to receive the share set by ORS 114.600 to 114.725. Oregon is not a community property state and ORS 112.685 abolished dower and curtesy, so the election is the spousal claim against a will.

How much is the Oregon elective share?

It runs from 5 percent to 33 percent of the augmented estate, set by how long the couple were married to each other. ORS 114.605(2) prints a fifteen-row schedule that starts at 5 percent for a marriage of less than two years and rises by two points a year to 33 percent at fifteen years or more. ORS 114.605(1) then multiplies the augmented estate by that percentage to get a dollar amount. Nothing in the schedule turns on children, on a will, or on how property was titled.

How long does a surviving spouse have to claim the Oregon elective share?

Nine months from the date of death, by all three of the routes in ORS 114.610(1). A surviving spouse may petition for appointment of a personal representative together with a motion to elect, file the motion in a probate proceeding already open under ORS 113.035, or file a petition under ORS 114.720(1). Each branch carries the same nine months. The information a personal representative must send under ORS 113.145 says nothing about the election, so nobody is required to warn the survivor that the clock is running.

What counts in the Oregon augmented estate?

Three pools, under ORS 114.630(1): the decedent's probate estate under ORS 114.650, the decedent's nonprobate estate under ORS 114.660 and ORS 114.665, and the surviving spouse's own estate under ORS 114.675. The nonprobate reach is the part that surprises people. ORS 114.665 pulls in survivorship interests, payable on death and transfer on death designations, property the decedent could have named a beneficiary for, and property the decedent could have taken back by revoking, which reaches a funded revocable trust.

Can a spouse be disinherited in Oregon?

A will can leave a surviving spouse nothing, and the answer to that will is the election rather than a forced share of the probate estate. Four things end the right. A written waiver under ORS 114.620 signed by the surviving spouse, before or after the marriage. Living apart at the death, which lets a court deny or cut the share under ORS 114.725. Missing the nine months in ORS 114.610. And failing the ORS 112.572 survival rule, which deems a person to have died first unless clear and convincing evidence shows survival by at least 120 hours.

Does a surviving spouse's own property reduce the Oregon elective share?

Yes, and this decides more Oregon cases than the percentage does. ORS 114.700(1) applies the surviving spouse's estate first to satisfy the dollar amount. ORS 114.675(1) builds that estate from what the decedent left the spouse in probate, what passed to the spouse outside probate, all other property of the spouse valued at the date of death, and anything the spouse disclaimed. A survivor who already holds more than the elective share amount generally collects nothing further.

Sources:

Title: ORS Chapter 114, Administration of Estates Generally, 2025 Edition, including the division heading "Elective Share for Decedents Who Die On or After January 1, 2011" and ORS 114.005, 114.015, 114.505 to 114.560, 114.600 (elective share generally), 114.605 (amount of elective share), 114.610 (manner of making election), 114.615 (payment of elective share), 114.620 (waiver of right to elect and other rights), 114.625 (who may exercise right of election), 114.630 (augmented estate), 114.635 (exclusions from augmented estate), 114.650, 114.660, 114.665, 114.675, 114.685, 114.690, 114.700 (priority of sources from which elective share payable), 114.705, 114.710, 114.720 and 114.725 (effect of separation). Publisher: Oregon Legislative Assembly, Legislative Counsel Committee. Publication Date: Not listed, accessed 2026-08-25. URL: https://www.oregonlegislature.gov/bills_laws/ors/ors114.html
Title: ORS Chapter 112, Intestate Succession and Wills, 2025 Edition, including ORS 112.025, 112.035, 112.305 (revocation by marriage; exceptions), 112.315 (revocation by divorce or annulment), 112.465 (slayer or abuser considered to predecease decedent), 112.572 (requirement of survival), 112.586 (exceptions), 112.685 (dower and curtesy abolished), 112.705 to 112.775 and 112.735. Publisher: Oregon Legislative Assembly, Legislative Counsel Committee. Publication Date: Not listed, accessed 2026-08-25. URL: https://www.oregonlegislature.gov/bills_laws/ors/ors112.html
Title: ORS Chapter 113, Initiation of Estate Proceedings, 2025 Edition, including ORS 113.015 (venue), 113.035, 113.075, 113.085 (preference in appointing personal representative) and 113.145 (information to devisees, heirs and interested persons). Publisher: Oregon Legislative Assembly, Legislative Counsel Committee. Publication Date: Not listed, accessed 2026-08-25. URL: https://www.oregonlegislature.gov/bills_laws/ors/ors113.html
Title: ORS Chapter 111, General Provisions, 2025 Edition, including ORS 111.005 (definitions for probate law), 111.075 (probate jurisdiction vested) and 111.275 (limited judgments). Publisher: Oregon Legislative Assembly, Legislative Counsel Committee. Publication Date: Not listed, accessed 2026-08-25. URL: https://www.oregonlegislature.gov/bills_laws/ors/ors111.html
Title: ORS Chapter 116, Accounting, Distribution and Closing, 2025 Edition, including ORS 116.133 (distribution; order in which assets appropriated; abatement) and ORS 116.343 (allowances for exemptions, deductions and credits). Publisher: Oregon Legislative Assembly, Legislative Counsel Committee. Publication Date: Not listed, accessed 2026-08-25. URL: https://www.oregonlegislature.gov/bills_laws/ors/ors116.html
Title: ORS Chapter 21, State Court Fees, 2025 Edition, including ORS 21.170 (probate filing fees and accounting fees). Publisher: Oregon Legislative Assembly, Legislative Counsel Committee. Publication Date: Not listed, accessed 2026-08-25. URL: https://www.oregonlegislature.gov/bills_laws/ors/ors021.html
Title: ORS Chapter 106, Marriage and Domestic Partnership, 2025 Edition, including ORS 106.300 to 106.340 and ORS 106.340 (certain privileges, immunities, rights, benefits and responsibilities granted or imposed). Publisher: Oregon Legislative Assembly, Legislative Counsel Committee. Publication Date: Not listed, accessed 2026-08-25. URL: https://www.oregonlegislature.gov/bills_laws/ors/ors106.html
Title: ORS Chapter 18, Judgments, 2025 Edition, including ORS 18.395 (homestead exemption). Publisher: Oregon Legislative Assembly, Legislative Counsel Committee. Publication Date: Not listed, accessed 2026-08-25. URL: https://www.oregonlegislature.gov/bills_laws/ors/ors018.html

It is not legal advice.