Chapter 112

1997 EDITION

Intestate Succession and Wills

INTESTATE SUCCESSION AND WILLS

PROBATE LAW

INTESTATE SUCCESSION

112.015 Net intestate estate

112.017 Person considered spouse for purposes of ORS 112.017 to 112.045

112.025 Share of surviving spouse if decedent leaves issue

112.035 Share of surviving spouse if decedent leaves no issue

112.045 Share of others than surviving spouse

112.055 Escheat

112.065 Representation defined

112.075 Time of determining relationships; afterborn heirs

112.085 When person considered to have predeceased decedent

112.095 Persons of the half blood

112.105 Succession where parents not married

112.115 Persons related to decedent through two lines

ADVANCEMENTS

112.135 When gift is an advancement

112.145 Effect of advancement on distribution

112.155 Death of advancee before decedent

STATUS OF ADOPTED PERSONS

112.175 Adopted persons

112.185 Effect of more than one adoption

112.195 References in wills, deeds and other instruments to accord with law of intestate succession

WILLS

112.225 Who may make a will

112.227 Intention of testator expressed in will as controlling

112.230 Local law of state selected by testator controlling unless against public policy

112.232 Uniform International Wills Act

112.235 Execution of a will

112.245 Witness as beneficiary

112.255 Validity of execution of a will

112.265 Testamentary additions to trusts

112.270 Procedure to establish contract to make will or devise or not to revoke will or devise

112.272 In terrorem clauses valid and enforceable; exceptions

112.275 Manner of revocation or alteration exclusive

112.285 Express revocation or alteration

112.295 Revival of revoked or invalid will

112.305 Revocation by marriage

112.315 Revocation by divorce or annulment

112.325 Contract of sale of property devised not a revocation

112.335 Encumbrance or disposition of property after making will

112.345 Devise of life estate

112.355 Devise passes all interest of testator

112.365 Property acquired after making will

112.385 Nonademption of specific devises in certain cases

112.395 When estate passes to issue of devisee; anti-lapse; class gifts

112.400 Effect of failure of devise

112.405 Children born or adopted after execution of will; pretermitted children

112.410 Effect of general disposition or residuary clause on testator's power of appointment

112.415 Persons not entitled to estate of testator

112.435 Disposition of wills deposited with county clerk

EFFECT OF HOMICIDE ON INTESTATE SUCCESSION, WILLS, JOINT ASSETS, LIFE INSURANCE AND BENEFICIARY DESIGNATIONS

112.455 Definitions for ORS 112.455 to 112.555

112.465 Slayer considered to predecease decedent

112.475 Property owned by slayer and decedent

112.485 Property owned by slayer, decedent and others

112.495 Reversions, vested remainders, contingent remainders and future interests

112.505 Property appointed; powers of revocation or appointment

112.515 Proceeds of insurance on life and other benefit plans of decedent

112.525 Proceeds of insurance on life of slayer

112.535 Payment by insurance company, financial institution, trustee or obligor; no additional liability

112.545 Rights of persons without notice dealing with slayer

112.555 Evidence of felonious and intentional killing; conviction as conclusive

UNIFORM SIMULTANEOUS DEATH ACT

112.575 Disposition of property upon simultaneous death, generally

112.585 Beneficiaries designated to take successively

112.595 Joint tenants or tenants by entirety

112.605 Community property

112.615 Insured and beneficiary

112.625 Law does not apply if decedent provides otherwise

112.635 Construction and interpretation

112.645 Short title

UNIFORM DISCLAIMER OF TRANSFERS BY WILL, INTESTACY OR APPOINTMENT ACT

112.650 Short title

112.652 Right to disclaim interest in property; written disclaimer; contents

112.655 When disclaimer filed; delivery; where filed; notice

112.657 Devolution of disclaimed interest

112.660 Bar of right to disclaim; existence of right notwithstanding restriction; effect

112.662 Effect of ORS 112.650 to 112.667 on rights under other statutes

112.665 Application to existing interest

112.667 Uniformity in application

DOWER AND CURTESY ABOLISHED

112.685 Dower and curtesy abolished

112.695 Statute of limitation for recovery of dower or curtesy

UNIFORM DISPOSITION OF COMMUNITY PROPERTY RIGHTS AT DEATH ACT

112.705 Short title

112.715 Application to certain property

112.725 Rebuttable presumptions

112.735 One-half of property not subject to testamentary disposition or right to elect against will

112.745 Proceedings to perfect title

112.755 Who may institute proceedings

112.765 Rights of purchaser

112.775 Application and construction

DISPOSITION OF WILLS

112.800 Definition for ORS 112.800 to 112.830

112.805 Exclusive manner of disposing of wills; destroyed will not revoked

112.810 Duties of custodian of will

112.815 Conditions for disposal of will

112.820 Procedure for destruction of will; filing of affidavit; fee

112.825 Liability for destruction of will

112.830 Court may order delivery of will

CROSS-REFERENCES

Conservator, duty to deliver will upon death of protected person, 125.530

Damages for wrongful death, descent, 30.030 to 30.070

Definitions, 111.005

Financial institution deposits, disposition on death of depositor, 708A.430

Inheritance tax, determination, Ch. 118

Invalidity of will provision affecting decision to take one's own life under Oregon Death with Dignity Act, 127.870

Retirement fund, state employees' interest, disposition on death, 238.390

Savings association accounts, 722.262

Savings association deposits, disposition on death of depositor, 722.262

State employee, salary and wages, disposition if deceased, 293.490 to 293.500

Uniform Statutory Rule Against Perpetuities, 105.950 to 105.975

Waiver of notices, 111.225

112.015 to 112.115

Survival of wrongful death action, 30.020

112.025

Prenuptial property agreements, 108.700 to 108.740

112.035

Legitimacy of issue of certain void marriages, 106.190, 106.210, 107.142

Paternity, establishment of, 109.070

112.175

Adopted person, relationship to natural and adoptive parents, 109.041, 109.050

112.225

Gift of body or part by decedent, 97.952

112.650 to 112.667

Uniform Disclaimer of Transfers under Nontestamentary Instruments Act, 105.625 to 105.640

112.010 [Amended by 1969 c.591 s.69; renumbered 112.575]

INTESTATE SUCCESSION

112.015 Net intestate estate. Any part of the net estate of a decedent not effectively disposed of by the will of the decedent shall pass as provided in ORS 112.017 to 112.055. [1969 c.591 s.19]

112.017 Person considered spouse for purposes of ORS 112.017 to 112.045. For purposes of ORS 112.017 to 112.045, a person shall be considered the surviving spouse of a decedent under either of the following circumstances:

(1) The person was legally married to the decedent at the time of the decedent's death.

(2) The person and the decedent, although not married but capable of entering into a valid contract of marriage under ORS chapter 106, cohabited for a period of at least 10 years, the period ended not earlier than two years before the death of the decedent, and:

(a) During the 10-year period, the person and the decedent mutually assumed marital rights, duties and obligations;

(b) During the 10-year period, the person and the decedent held themselves out as husband and wife, and acquired a uniform and general reputation as a husband and wife;

(c) During at least the last two years of the 10-year period, the person and the decedent were domiciled in this state; and

(d) Neither the person nor the decedent was legally married to another person at the time of the decedent's death. [1993 c.598 s.4; 1995 c.235 s.1]

Note: Section 5, chapter 598, Oregon Laws 1993, provides:

Sec. 5. Section 4 of this Act [112.017] applies only to decedents who die on or after September 15, 1992. Section 4 of this Act does not apply to any decedent who died before the effective date of this Act [November 4, 1993] if estate proceedings were commenced and an order of final distribution entered pursuant to ORS 116.113 before the effective date of this Act. [1993 c.598 s.5]

Note: Section 2, chapter 235, Oregon Laws 1995, provides:

Sec. 2. (1) The amendments to ORS 112.017 by section 1 of this Act apply to the estates of all decedents who die on or after the effective date of this Act [September 9, 1995].

(2) The amendments to ORS 112.017 by section 1 of this Act do not affect the application of ORS 112.017 (1993 Edition) to a decedent who died before the effective date of this Act if ORS 112.017 (1993 Edition) applied to the decedent's estate under the provisions of section 5, chapter 598, Oregon Laws 1993. The estate of a decedent who died before the effective date of this Act and that was subject to ORS 112.017 (1993 Edition) under the provisions of section 5, chapter 598, Oregon Laws 1993, shall be administered as though ORS 112.017 had not been amended in the manner provided by section 1 of this Act. [1995 c.235 s.2]

112.020 [Amended by 1969 c.591 s.70; renumbered 112.585]

112.025 Share of surviving spouse if decedent leaves issue. If the decedent leaves a surviving spouse and issue, the intestate share of the surviving spouse is:

(1) If there are surviving issue of the decedent all of whom are issue of the surviving spouse also, the entire net intestate estate.

(2) If there are surviving issue of the decedent one or more of whom are not issue of the surviving spouse, one-half of the net intestate estate. [1969 c.591 s.20; 1987 c.329 s.1]

112.030 [Amended by 1969 c.591 s.71; renumbered 112.595]

112.035 Share of surviving spouse if decedent leaves no issue. If the decedent leaves a surviving spouse and no issue, the surviving spouse shall have all of the net intestate estate. [1969 c.591 s.21]

112.040 [Amended by 1969 c.591 s.73; renumbered 112.615]

112.045 Share of others than surviving spouse. The part of the net intestate estate not passing to the surviving spouse shall pass:

(1) To the issue of the decedent. If the issue are all of the same degree of kinship to the decedent, they shall take equally, but if of unequal degree, then those of more remote degrees take by representation.

(2) If there is no surviving issue, to the surviving parents of the decedent.

(3) If there is no surviving issue or parent, to the brothers and sisters of the decedent and the issue of any deceased brother or sister of the decedent by representation. If there is no surviving brother or sister, the issue of brothers and sisters take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree, then those of more remote degrees take by representation.

(4) If there is no surviving issue, parent or issue of a parent, to the grandparents of the decedent and the issue of any deceased grandparent of the decedent by representation. If there is no surviving grandparent, the issue of grandparents take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree, then those of more remote degrees take by representation.

(5) If, at the time of taking, surviving parents or grandparents of the decedent are married to each other, they shall take real property as tenants by the entirety and personal property as joint owners with the right of survivorship. [1969 c.591 s.22]

112.050 [Repealed by 1969 c.591 s.305]

112.055 Escheat. If no person takes under ORS 112.017 to 112.045, the net intestate estate shall escheat to the State of Oregon. [1969 c.591 s.23]

112.060 [Amended by 1969 c.591 s.74; renumbered 112.625]

112.065 Representation defined. “Representation” means the method of determining the passing of the net intestate estate when the distributees are of unequal degrees of kinship to the decedent. It is accomplished as follows: The estate shall be divided into as many shares as there are surviving heirs of the nearest degree of kinship and deceased persons of the same degree who left issue who survive the decedent, each surviving heir of the nearest degree receiving one share and the share of each deceased person of the same degree being divided among the issue of the deceased person in the same manner. [1969 c.591 s.24]

112.070 [Amended by 1969 c.591 s.75; renumbered 112.635]

112.075 Time of determining relationships; afterborn heirs. The relationships existing at the time of the death of the decedent govern the passing of the net intestate estate, but persons conceived before the death of the decedent and born alive thereafter inherit as though they were alive at the time of the death of the decedent. [1969 c.591 s.25]

112.080 [Amended by 1969 c.591 s.76; renumbered 112.645]

112.085 When person considered to have predeceased decedent. Any person who fails to survive the decedent by 120 hours is considered to have predeceased the decedent for all purposes of intestate succession and taking under the will of the decedent, unless the will of the decedent provides otherwise, and the heirs and devisees of the decedent are determined accordingly. [1969 c.591 s.26; 1973 c.506 s.6; 1975 c.244 s.1]

112.095 Persons of the half blood. Persons of the half blood inherit the same share that they would inherit if they were of the whole blood. [1969 c.591 s.27]

112.105 Succession where parents not married. (1) For all purposes of intestate succession, full effect shall be given to all relationships as described in ORS 109.060, except as otherwise provided by law in case of adoption.

(2) For all purposes of intestate succession and for those purposes only, before the relationship of father and child and other relationships dependent upon the establishment of paternity shall be given effect under subsection (1) of this section:

(a) The paternity of the child shall have been established under ORS 109.070 during the lifetime of the child or;

(b) The father shall have acknowledged himself to be the father in writing signed by him during the lifetime of the child. [1969 c.591 s.28]

112.115 Persons related to decedent through two lines. A person who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship which would entitle the person to the larger share. [1969 c.591 s.29]

ADVANCEMENTS

112.135 When gift is an advancement. If a person dies intestate as to all the estate of the person, property which the person gave in the lifetime of the person to an heir shall be treated as an advancement against the heir's share of the estate if declared in writing by the decedent or acknowledged in writing by the heir to be an advancement. For that purpose the property advanced shall be valued as of the time the heir came into possession or enjoyment of the property or as of the time of death of the decedent, whichever occurs first. [1969 c.591 s.30]

112.145 Effect of advancement on distribution. (1) If the value of the advancement exceeds the heir's share of the estate, the heir shall be excluded from any further share of the estate, but the heir shall not be required to refund any part of the advancement. If the value of the advancement is less than the heir's share, the heir shall be entitled upon distribution of the estate to such additional amount as will give the heir the heir's share of the estate.

(2) The property advanced is not a part of the estate, but for the purpose of determining the shares of the heirs the advancement shall be added to the estate, the sum then divided among the heirs and the advancement then deducted from the share of the heir to whom the advancement was made. [1969 c.591 s.31]

112.155 Death of advancee before decedent. If the recipient of the property advanced fails to survive the decedent, the amount of the advancement shall be taken into account in computing the share of the issue of the recipient, whether or not the issue take by representation. [1969 c.591 s.32]

STATUS OF ADOPTED PERSONS

112.175 Adopted persons. (1) An adopted person, the issue and kindred of the adopted person shall take by intestate succession from the adoptive parents, their issue and kindred, and the adoptive parents, their issue and kindred shall take by intestate succession from the adopted person, the issue and kindred of the adopted person, as though the adopted person were the natural child of the adoptive parents.

(2) An adopted person shall cease to be treated as the child of the person's natural parents for all purposes of intestate succession by the adopted person, the issue and kindred of the adopted person and the natural parents, their issue and kindred, except:

(a) If a natural parent of a person marries or remarries and the person is adopted by the stepparent, the adopted person shall continue also to be treated, for all purposes of intestate succession, as the child of the natural parent who is the spouse of the adoptive parent.

(b) If a natural parent of a person dies, the other natural parent remarries and the person is adopted by the stepparent, the adopted person shall continue also to be treated, for all purposes of intestate succession by any person through the deceased natural parent, as the child of the deceased natural parent.

(3) ORS chapters 111, 112, 113, 114, 115, 116 and 117 apply to adopted persons who were adopted in this state or elsewhere. [1969 c.591 s.33]

112.185 Effect of more than one adoption. For all purposes of intestate succession, a person who has been adopted more than once shall be treated as the child of the parents who have most recently adopted the person and, except as otherwise provided in this section, shall cease to be treated as the child of the previous adoptive parents. The person shall continue also to be treated as the child of a natural parent or previous adoptive parent only to the extent provided in ORS 112.175 (2), and for the purpose of applying that subsection with reference to a previous adoptive parent, “natural parent” in that subsection means the previous adoptive parent. [1969 c.591 s.34]

112.195 References in wills, deeds and other instruments to accord with law of intestate succession. Unless a contrary intent is established by the instrument, all references in a will, deed, trust instrument or other instrument to an individual or member of a class described generically in relation to a particular person as children, issue, grandchildren, descendants, heirs, heirs of the body, next of kin, distributees, grandparents, brothers, nephews or other relatives shall include any person who would be treated as so related for all purposes of intestate succession, except that an adopted person so included must have been adopted as a minor or after having been a member of the household of the adoptive parent while a minor. [1969 c.591 s.35]

WILLS

112.225 Who may make a will. Any person who is 18 years of age or older or who has been lawfully married, and who is of sound mind, may make a will. [1969 c.591 s.36]

112.227 Intention of testator expressed in will as controlling. The intention of a testator as expressed in the will of the testator controls the legal effect of the dispositions of the testator. The rules of construction expressed in this section, ORS 112.230 and 112.410 apply unless a contrary intention is indicated by the will. [1973 c.506 s.10]

112.230 Local law of state selected by testator controlling unless against public policy. The meaning and legal effect of a disposition in a will shall be determined by the local law of a particular state selected by the testator in the instrument of the testator unless the application of that law is contrary to the public policy of this state. [1973 c.506 s.11]

112.232 Uniform International Wills Act. (1) As used in this section:

(a) “International will” means a will executed in conformity with subsections (2) to (5) of this section.

(b) “Authorized person” and “person authorized to act in connection with international wills” means a person who by subsection (9) of this section, or by the laws of the United States including members of the diplomatic and consular service of the United States designated by foreign service regulations, is empowered to supervise the execution of international wills.

(2)(a) A will is valid as regards form, irrespective particularly of the place where it is made, of the location of the assets and of the nationality, domicile or residence of the testator, if it is made in the form of an international will complying with the requirements of this section.

(b) The invalidity of the will as an international will does not affect its formal validity as a will of another kind.

(3)(a) The will must be made in writing. It need not be written by the testator. It may be written in any language, by hand or by any other means.

(b) The testator shall declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is the will of the testator and that the testator knows the contents thereof. The testator need not inform the witnesses, or the authorized person, of the contents of the will.

(c) In the presence of the witnesses, and of the authorized person, the testator shall sign the will or, if the testator has previously signed it, shall acknowledge the signature.

(d) If the testator is unable to sign, the absence of that signature does not affect the validity of the international will if the testator indicates the reason for inability to sign and the authorized person makes note thereof on the will. In that case, it is permissible for any other person present, including the authorized person or one of the witnesses, at the direction of the testator, to sign the testator's name for the testator if the authorized person makes note of this on the will, but it is not required that any person sign the testator's name for the testator.

(e) The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator.

(4)(a) The signatures must be placed at the end of the will. If the will consists of several sheets, each sheet must be signed by the testator or, if the testator is unable to sign, by the person signing on behalf of the testator or, if there is no such person, by the authorized person. In addition, each sheet must be numbered.

(b) The date of the will must be the date of its signature by the authorized person. That date must be noted at the end of the will by the authorized person.

(c) The authorized person shall ask the testator whether the testator wishes to make a declaration concerning the safekeeping of the will. If so and at the express request of the testator, the place where the testator intends to have the will kept must be mentioned in the certificate provided for in subsection (5) of this section.

(d) A will executed in compliance with subsection (3) of this section is not invalid merely because it does not comply with this subsection.

(5) The authorized person shall attach to the will a certificate to be signed by the authorized person establishing that the requirements of this section for valid execution of an international will have been fulfilled. The authorized person shall keep a copy of the certificate and deliver another to the testator. The certificate must be substantially in the following form:

____________________________________

CERTIFICATE

(Convention of October 26, 1973)

1. I, _______ (name, address and

capacity), a person authorized

to act in connection with

international wills,

2. certify that on _______ (date)

at _______ (place)

3. (testator) _______ (name, address,

date and place of birth) in

my presence and that of the

witnesses

4. (a) _______ (name, address, date

and place of birth)

(b) _______ (name, address, date

and place of birth) has declared

that the attached document is

the will of the testator and

that the testator knows the

contents thereof.

5. I furthermore certify that:

6. (a) in my presence and in that

of the witnesses

(1) the testator has signed

the will or has acknowledged

the testator's signature

previously affixed.

*(2) following a declaration

of the testator stating that

the testator was unable to

sign the will for the following

reason _________,

I have mentioned this declar-

ation on the will, *and the

signature has been affixed by

_______ (name and address)

7. (b) the witnesses and I have signed

the will;

8. *(c) each page of the will has

been signed by ______

and numbered;

9. (d) I have satisfied myself as to

the identity of the testator and

of the witnesses as designated above;

10. (e) the witnesses met the conditions

requisite to act as such according

to the law under which I am acting;

11. *(f) the testator has requested me

to include the following statement

concerning the safekeeping of

the will: ___________

12. PLACE OF EXECUTION

13. DATE

14. SIGNATURE and, if necessary, SEAL

*to be completed if appropriate

____________________________________

(6) In the absence of evidence to the contrary, the certificate of the authorized person is conclusive of the formal validity of the instrument as a will under this section. The absence or irregularity of a certificate does not affect the formal validity of a will under this section.

(7) An international will is subject to the ordinary rules of revocation of wills.

(8) Subsections (1) to (7) of this section derive from Annex to Convention of October 26, 1973, Providing a Uniform Law on the Form of an International Will. In interpreting and applying this section, regard shall be had to its international origin and to the need for uniformity in its interpretation.

(9) Individuals who have been admitted to practice law before the courts of this state and are currently licensed so to do are authorized persons in relation to international wills.

(10) This section may be referred to and cited as the Uniform International Wills Act. [1981 c.481 s.2; 1993 c.98 s.2]

112.235 Execution of a will. A will shall be in writing and shall be executed with the following formalities:

(1) The testator, in the presence of each of the witnesses, shall:

(a) Sign the will; or

(b) Direct one of the witnesses or some other person to sign thereon the name of the testator; or

(2) Any person who signs the name of the testator as provided in subsection (1)(b) of this section shall sign the signer's own name on the will and write on the will that the signer signed the name of the testator at the direction of the testator.

(3) At least two witnesses shall each:

(a) See the testator sign the will; or

(b) Hear the testator acknowledge the signature on the will; and

(4) A will executed in compliance with the Uniform International Wills Act shall be deemed to have complied with the formalities of this section. [1969 c.591 s.37; 1973 c.506 s.7; 1981 c.481 s.4]

112.237 [1981 c.481 s.3; repealed by 1993 c.98 s.26]

112.245 Witness as beneficiary. A will attested by an interested witness is not thereby invalidated. An interested witness is one to whom is devised a personal and beneficial interest in the estate. [1969 c.591 s.38; 1973 c.506 s.8]

112.255 Validity of execution of a will. (1) A will is lawfully executed if it is in writing, signed by or at the direction of the testator and otherwise executed in accordance with the law of:

(a) This state at the time of execution or at the time of death of the testator; or

(b) The domicile of the testator at the time of execution or at the time of the testator's death; or

(2) A will is lawfully executed if it complies with the Uniform International Wills Act. [1969 c.591 s.39; 1981 c.481 s.5]

112.265 Testamentary additions to trusts. (1) A devise may be made by a will to the trustee or trustees of a trust, regardless of the existence, size or character of the corpus of the trust, if:

(a) The trust is established or will be established by the testator, or by the testator and some other person or persons, or by some other person or persons; and

(b) The trust is identified in the testator's will; and

(c) The terms of the trust are set forth in a written instrument, other than a will, executed before or concurrently with the execution of the testator's will, or in the valid last will of a person who has predeceased the testator.

(2) The trust may be a funded or unfunded life insurance trust, although the trustor has reserved any or all of the rights of ownership of the insurance contracts.

(3) The devise shall not be invalid because the trust:

(a) Is amendable or revocable, or both; or

(b) Was amended after the execution of the testator's will or after the death of the testator.

(4) Unless the testator's will provides otherwise, the property so devised:

(a) Shall not be considered to be held under a testamentary trust of the testator, but shall become a part of the trust to which it is given; and

(b) Shall be administered and disposed of in accordance with the provisions of the instrument or will setting forth the terms of the trust, including any amendments thereto made before the death of the testator, regardless of whether made before or after the execution of the testator's will, and, if the testator's will so provides, including any amendments to the trust made after the death of the testator.

(5) A revocation or termination of the trust before the death of the testator shall cause the devise to lapse.

(6) This section shall not be construed as providing an exclusive method for making devises to the trustee or trustees of a trust established otherwise than by the will of the testator making the devise.

(7) This section shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact the same or similar provisions. [1969 c.591 s.40]

112.270 Procedure to establish contract to make will or devise or not to revoke will or devise. (1) A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, executed after January 1, 1974, shall be established only by:

(a) Provisions of a will stating material provisions of the contract;

(b) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or

(2) The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills. [1973 c.506 s.13]

112.272 In terrorem clauses valid and enforceable; exceptions. (1) Except as provided in this section, an in terrorem clause in a will is valid and enforceable. If a devisee contests a will that contains an in terrorem clause that applies to the devisee, the court shall enforce the clause against the devisee even though the devisee establishes that there was probable cause for the contest.

(2) The court shall not enforce an in terrorem clause if the devisee contesting the will establishes that the devisee has probable cause to believe that the will is a forgery or that the will has been revoked.

(3) The court shall not enforce an in terrorem clause if the contest is brought by a fiduciary acting on behalf of a protected person under the provisions of ORS chapter 125, a guardian ad litem appointed for a minor, or a guardian ad litem appointed for an incapacitated or financially incapable person.

(4) For the purposes of this section, “in terrorem clause” means a provision in a will that reduces or eliminates a devise to a devisee if the devisee contests the will. [1997 c.151 s.2]

Note: Section 5, chapter 151, Oregon Laws 1997, provides:

Sec. 5. Sections 2 and 4 of this Act [112.272 and 128.255] apply only to contests of will and challenges to trusts commenced on or after the effective date of this Act [October 4, 1997]. [1997 c.151 s.5]

112.275 Manner of revocation or alteration exclusive. A will may be revoked or altered only as provided in ORS 112.285 to 112.315. [1969 c.591 s.41]

112.285 Express revocation or alteration. (1) A will may be revoked or altered by another will.

(2) A will may be revoked by being burned, torn, canceled, obliterated or destroyed, with the intent and purpose of the testator of revoking the will, by the testator, or by another person at the direction of the testator and in the presence of the testator. The injury or destruction by a person other than the testator at the direction and in the presence of the testator shall be proved by at least two witnesses. [1969 c.591 s.42]

112.295 Revival of revoked or invalid will. If a will or a part thereof has been revoked or is invalid, it can be revived only by a re-execution of the will or by the execution of another will in which the revoked or invalid will or part thereof is incorporated by reference. [1969 c.591 s.43]

112.305 Revocation by marriage. A will is revoked by the subsequent marriage of the testator if the testator is survived by a spouse, unless:

(1) The will evidences an intent that it not be revoked by the subsequent marriage or was drafted under circumstances establishing that it was in contemplation of the marriage; or

(2) The testator and spouse entered into a written contract before the marriage that either makes provision for the spouse or provides that the spouse is to have no rights in the estate of the testator. [1969 c.591 s.44]

112.315 Revocation by divorce or annulment. Unless a will evidences a different intent of the testator, the divorce or annulment of the marriage of the testator after the execution of the will revokes all provisions in the will in favor of the former spouse of the testator and any provision therein naming the former spouse as executor, and the effect of the will is the same as though the former spouse did not survive the testator. [1969 c.591 s.45]

112.325 Contract of sale of property devised not a revocation. An executory contract of sale made by a testator to convey property devised in a will previously made, is not a revocation of the previous devise, either in law or equity; but the property shall pass by the devise, subject to the same remedies on the agreement, for specific performance or otherwise, against devisees as might be had against the heirs of the testator if the property had descended to them. [1969 c.591 s.46]

112.335 Encumbrance or disposition of property after making will. An encumbrance or disposition of property by a testator after the testator makes a will does not affect the operation of the will upon a remaining interest therein that is subject to the disposal of the testator at the time of the death of the testator. [1969 c.591 s.47]

112.345 Devise of life estate. A devise of property to any person for the term of the life of the person, and after the death of the person to the children or heirs of the person, vests an estate or interest for life only in the devisee and remainder in the children or heirs. [1969 c.591 s.48]

112.355 Devise passes all interest of testator. A devise of property passes all of the interest of the testator therein at the time of the death of the testator, unless the will evidences the intent of the testator to devise a lesser interest. [1969 c.591 s.49]

112.365 Property acquired after making will. Any property acquired by the testator after the making of a will passes thereby, and in like manner as if title thereto were vested in the testator at the time of making the will, unless the intent expressed in the will is clear and explicit to the contrary. [1969 c.591 s.50]

112.375 [1969 c.591 s.51; repealed by 1973 c.506 s.46]

112.385 Nonademption of specific devises in certain cases. (1) In the situations and under the circumstances provided in and governed by this section, specific devises will not fail or be extinguished by the destruction, damage, sale, condemnation or change in form of the property specifically devised. This section is inapplicable if the intent that the devise fail under the particular circumstances appears in the will or if the testator during the lifetime of the testator gives property to the specific devisee with the intent of satisfying the specific devise.

(2) Whenever the subject of a specific devise is property only part of which is destroyed, damaged, sold or condemned, the specific devise of any remaining interest in the property owned by the testator at the time of death is not affected by this section; but this section applies to the part which would have been adeemed under the common law by the destruction, damage, sale or condemnation.

(3) If insured property that is the subject of a specific devise is destroyed or damaged, the specific devisee has the right to receive, reduced by any amount expended or incurred by the testator in restoration or repair of the property:

(a) Any insurance proceeds paid to the personal representative after the death of the testator, with the incidents of the specific devise; and

(b) A general pecuniary legacy equivalent to any insurance proceeds paid to the testator within six months before the death of the testator.

(4) If property that is the subject of a specific devise is sold by the testator, the specific devisee has the right to receive:

(a) Any balance of the purchase price unpaid at the time of the death of the testator, including any security interest in the property and interest accruing before the death, if part of the estate, with the incidents of the specific devise; and

(b) A general pecuniary legacy equivalent to the amount of the purchase price paid to the testator within six months before the death of the testator. Acceptance of a promissory note of the purchaser or a third party is not considered payment, but payment on the note is payment on the purchase price. Sale by an agent of the testator or by a trustee under a revocable living trust created by the testator, the principal of which is to be paid to the personal representative or estate of the testator on the death of the testator, is a sale by the testator for purposes of this section.

(5) If property that is the subject of a specific devise is taken by condemnation before the death of the testator, the specific devisee has the right to receive:

(a) Any amount of the condemnation award unpaid at the time of the death, with the incidents of the specific devise; and

(b) A general pecuniary legacy equivalent to the amount of an award paid to the testator within six months before the death of the testator. In the event of an appeal in a condemnation proceeding, the award, for purposes of this section, is limited to the amount established on the appeal.

(6) If property that is the subject of a specific devise is sold by a conservator of the testator, or insurance proceeds or a condemnation award are paid to a conservator of the testator, the specific devisee has the right to receive a general pecuniary legacy equivalent to the proceeds of the sale, the insurance proceeds or the condemnation award, reduced by any amount expended or incurred in restoration or repair of the property. This subsection does not apply if the testator, after the sale, receipt of insurance proceeds or award, is adjudicated competent and survives such adjudication by six months.

(7) If securities are specifically devised, and after the execution of the will other securities in the same or another entity are distributed to the testator by reason of ownership of the specifically devised securities and as a result of a partial liquidation, stock dividend, stock split, merger, consolidation, reorganization, recapitalization, redemption, exchange or any other similar transaction, and if the other securities are part of the estate of the testator at death, the specific devise is considered to include the additional or substituted securities. Distributions prior to death with respect to a specifically devised security not provided for in this subsection are not part of the specific devise. As used in this subsection, “securities” means the same as defined in ORS 59.015.

(8) The amount a specific devisee receives as provided in this section is reduced by any expenses of the sale or of collection of proceeds of insurance, sale or condemnation award and by any amount by which the income tax of the decedent or the estate of the decedent is increased by reason of items provided for in this section. Expenses include legal fees paid or incurred. [1969 c.591 s.52; 1973 c.506 s.14; 1975 c.491 s.6; 1995 c.664 s.84]

112.395 When estate passes to issue of devisee; anti-lapse; class gifts. When property is devised to any person who is related by blood or adoption to the testator and who dies before the testator leaving lineal descendants, the descendants take by representation the property the devisee would have taken if the devisee had survived the testator, unless otherwise provided in the will of the testator. Unless otherwise provided in the will of the testator, one who would have been a devisee under a class gift if the person had survived the testator is treated as a devisee for purposes of this section if death occurred after execution of the will. [1969 c.591 s.53; 1973 c.506 s.15]

112.400 Effect of failure of devise. Except as provided in ORS 112.395:

(1) If a devise other than a residuary devise fails for any reason, it becomes a part of the residue.

(2) If the residue is devised to two or more persons and the share of one of the residuary devisees fails for any reason, the share passes to the other residuary devisee or to other residuary devisees in proportion to their interests in the residue. [1973 c.506 s.17]

112.405 Children born or adopted after execution of will; pretermitted children. (1) As used in this section, “pretermitted child” means a child of a testator who is born or adopted after the execution of the will of the testator, who is neither provided for in the will nor in any way mentioned in the will and who survives the testator.

(2) If a testator has one or more children living when the testator executes a will and no provision is made in the will for any such living child, a pretermitted child shall not take a share of the estate of the testator disposed of by the will.

(3) If a testator has one or more children living when the testator executes a will and provision is made in the will for one or more of such living children, a pretermitted child is entitled to share in the estate of the testator disposed of by the will as follows:

(a) The pretermitted child may share only in the portion of the estate devised to the living children by the will.

(b) The share of each pretermitted child shall be the total value of the portion of the estate devised to the living children by the will divided by the number of pretermitted children plus the number of living children for whom provision, other than nominal provision, is made in the will.

(c) To the extent feasible, the interest of a pretermitted child in the estate shall be of the same character, whether equitable or legal, as the interest the testator gave to the living children by the will.

(4) If a testator has no child living when the testator executes a will, a pretermitted child shall take a share of the estate as though the testator had died intestate.

(5) A pretermitted child may recover the share of the estate to which the child is entitled, as provided in this section, either from the other children under subsection (3) of this section or from the testamentary beneficiaries under subsection (4) of this section, ratably, out of the portions of the estate passing to those persons under the will. In abating the interests of those beneficiaries, the character of the testamentary plan adopted by the testator shall be preserved so far as possible. [1969 c.591 s.54]

112.410 Effect of general disposition or residuary clause on testator's power of appointment. A general residuary clause in a will or a will making general disposition of all of the testator's property does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intention to include the property subject to the power. [1973 c.506 s.12]

112.415 Persons not entitled to estate of testator. Except as otherwise expressly provided by law, a person, including a child of the testator and a descendant of that child, shall not take or be entitled to take any portion of the estate of a testator disposed of by the will of the testator other than as provided in the will. [1969 c.591 s.55]

112.425 [1969 c.591 s.56; repealed by 1989 c.770 s.11]

112.435 Disposition of wills deposited with county clerk. So far as the county clerk is able, the county clerk of each county shall deliver to the testator, or to the person to whom the will is to be delivered after the death of the testator, each will deposited in the office of the county clerk for safekeeping pursuant to ORS 114.410 (1965 Replacement Part). Any will the county clerk has been unable to so deliver before January 1, 2010, may be destroyed by the county clerk. [1969 c.591 s.57]

EFFECT OF HOMICIDE ON INTESTATE SUCCESSION, WILLS, JOINT ASSETS, LIFE INSURANCE AND BENEFICIARY DESIGNATIONS

112.455 Definitions for ORS 112.455 to 112.555. As used in ORS 112.455 to 112.555:

(1) “Decedent” means a person whose life is taken by a slayer.

(2) “Slayer” means a person who, with felonious intent, takes or procures the taking of the life of another. [1969 c.591 s.58]

112.465 Slayer considered to predecease decedent. Property that would have passed from the decedent or the estate of the decedent to the slayer by intestate succession, by will or by trust shall pass and be vested as if the slayer had predeceased the decedent. [1969 c.591 s.59]

112.475 Property owned by slayer and decedent. If the slayer and the decedent owned property as tenants by the entirety or with a right of survivorship, upon the death of the decedent an undivided one-half interest shall remain in the slayer for the lifetime of the slayer and, subject thereto, the property shall pass to and be vested in the heirs or devisees of the decedent other than the slayer. [1969 c.591 s.60]

112.485 Property owned by slayer, decedent and others. If the slayer, the decedent and another or others owned property with a right of survivorship, upon the death of the decedent the interest of the slayer shall remain as an undivided interest in the slayer for the lifetime of the slayer and, subject thereto, the property shall pass to and be vested in the other surviving owner or owners. [1969 c.591 s.61]

112.495 Reversions, vested remainders, contingent remainders and future interests. (1) Property in which the slayer owns a reversion or vested remainder subject to an estate for the lifetime of decedent shall pass to the heirs or devisees of the decedent for a period of time equal to the normal life expectancy of a person of the sex and age of the decedent at the time of death. If the particular estate is owned by a third person for the lifetime of the decedent, it shall continue in such person for a period of time equal to the normal life expectancy of a person of the sex and age of the decedent at the time of death.

(2) As to a contingent remainder or executory or other future interest owned by the slayer subject to become vested in the slayer or increased in any way for the slayer upon the condition of the death of the decedent:

(a) If the interest would not have become vested or increased if the slayer had predeceased the decedent, the slayer shall be considered to have so predeceased the decedent; and

(b) In any case, the interest shall not be so vested or increased during a period of time equal to the normal life expectancy of a person of the sex and age of the decedent at the time of death. [1969 c.591 s.62]

112.505 Property appointed; powers of revocation or appointment. (1) Property appointed by the will of the decedent to or for the benefit of the slayer shall be distributed as if the slayer had predeceased the decedent.

(2) Property owned either presently or in remainder by the slayer, subject to be divested by the exercise by the decedent of a power of revocation or a general power of appointment, shall pass to and be vested in the heirs or devisees of the decedent other than the slayer. Property so owned by the slayer, subject to be divested by the exercise by the decedent of a power of appointment to a particular person or persons or to a class of persons, shall pass to such person or persons or in equal shares to the members of such class of persons to the exclusion of the slayer. [1969 c.591 s.63]

112.515 Proceeds of insurance on life and other benefit plans of decedent. Proceeds payable to or for the benefit of the slayer as beneficiary or assignee of the decedent of the following interests shall be paid to the secondary beneficiary, or if there is no secondary beneficiary, to the personal representative of the decedent's estate:

(1) A policy or certificate of insurance on the life of the decedent.

(2) A certificate of membership in any benevolent association or organization on the life of the decedent.

(3) Rights of the decedent as survivor of a joint life policy.

(4) Proceeds under any pension, profit-sharing or other plan. [1969 c.591 s.64]

112.525 Proceeds of insurance on life of slayer. If the decedent is beneficiary or assignee of any policy or certificate of insurance on the life of the slayer, the proceeds shall be paid to the personal representative of the decedent's estate unless:

(1) The policy or certificate names some person other than the slayer or the personal representative of the slayer as the secondary beneficiary.

(2) The slayer, by naming a new beneficiary or assignee, performs an act which would have deprived the decedent of the interest of the decedent if the decedent had been living. [1969 c.591 s.65]

112.535 Payment by insurance company, financial institution, trustee or obligor; no additional liability. Any insurance company making payment according to the terms of its policy, or any financial institution, trustee or other person performing an obligation to the slayer shall not be subjected to additional liability because of ORS 112.455 to 112.555 if the payment or performance is made without written notice by a claimant of a claim arising under those sections. Upon receipt of written notice the person to whom it is directed may withhold any disposition of the property pending determination of the duties of the person. [1969 c.591 s.66; 1997 c.631 s.403]

112.545 Rights of persons without notice dealing with slayer. ORS 112.455 to 112.555 do not affect the rights of any person who for value and without notice purchases or agrees to purchase property that the slayer would have acquired except for those sections, but all proceeds received by the slayer from the sale shall be held by the slayer in trust for the persons entitled to the property as provided in those sections. The slayer shall be liable for any portion of the proceeds of the sale that the slayer may have expended and for the difference, if any, between the amount received from the sale and the actual value of the property. [1969 c.591 s.67]

112.555 Evidence of felonious and intentional killing; conviction as conclusive. A final judgment of conviction of felonious and intentional killing is conclusive for purposes of ORS 112.455 to 112.555. In the absence of a conviction of felonious and intentional killing the court may determine by a preponderance of evidence whether the killing was felonious and intentional for purposes of ORS 112.455 to 112.555. [1969 c.591 s.68; 1973 c.506 s.18]

UNIFORM SIMULTANEOUS

DEATH ACT

112.575 Disposition of property upon simultaneous death, generally. Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if the person had survived, except as provided otherwise in ORS 112.575 to 112.645. [Formerly 112.010]

112.585 Beneficiaries designated to take successively. If property is so disposed of that the right of a beneficiary to succeed to any interest therein is conditional upon surviving another person, and both persons die, and there is no sufficient evidence that the two have died otherwise than simultaneously, the beneficiary shall be deemed not to have survived. If there is no sufficient evidence that all of two or more beneficiaries have died otherwise than simultaneously and property has been disposed of in such a way that at the time of their death each of such beneficiaries would have been entitled to the property if the beneficiary had survived the others, the property shall be divided into as many equal portions as there were such beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each of such beneficiaries had survived. [Formerly 112.020]

112.595 Joint tenants or tenants by entirety. (1) Where there is no sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them have so died the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants.

(2) The term “joint tenants” includes owners of property held under circumstances which entitled one or more to the whole of the property on the death of the other or others. [Formerly 112.030]

112.605 Community property. Where a husband and wife had died, leaving community property, and there is no sufficient evidence that they have died otherwise than simultaneously, one-half of all the community property shall pass as if the husband survived and the other one-half thereof shall pass as if the wife had survived. [1969 c.591 s.72]

112.615 Insured and beneficiary. Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously the proceeds of the policy shall be distributed as if the insured had survived the beneficiary, except if the policy or any interest therein is community property of the insured and spouse, and there is no alternative beneficiary except the estate or personal representatives of the insured, the proceeds of such interest shall be distributed as community property under ORS 112.605. [Formerly 112.040]

112.625 Law does not apply if decedent provides otherwise. ORS 112.575 to 112.645 shall not apply in the case of wills, living trusts, deeds, contracts of insurance or any other situation where provision is made for distribution of property different from the provisions of ORS 112.575 to 112.645 or where provision is made for a presumption as to survivorship which results in a distribution of property different from that so provided. [Formerly 112.060]

112.635 Construction and interpretation. ORS 112.575 to 112.645 shall be so construed and interpreted as to effectuate their general purpose to make uniform the law in those states which enact the Uniform Simultaneous Death Act. [Formerly 112.070]

112.645 Short title. ORS 112.575 to 112.645 may be cited as the “Uniform Simultaneous Death Act.” [Formerly 112.080]

UNIFORM DISCLAIMER OF

TRANSFERS BY WILL, INTESTACY

OR APPOINTMENT ACT

112.650 Short title. ORS 112.650 to 112.667 may be cited as the “Uniform Disclaimer of Transfers by Will, Intestacy or Appointment Act.” [1975 c.480 s.9 (enacted in lieu of 112.675)]

112.652 Right to disclaim interest in property; written disclaimer; contents. A person, or the representative of a deceased, incapacitated or protected person, or any other fiduciary for a person, who is an heir, next of kin, devisee, legatee, person succeeding to a disclaimed interest, beneficiary under a testamentary instrument, or appointee under a power of appointment exercised by a testamentary instrument, may disclaim in whole or in part the right of succession to any property or interest therein, including a future interest, by delivering a written disclaimer under ORS 112.650 to 112.667. A disclaimer may be of a fractional share or of any limited interest or estate. The instrument shall describe the property or interest disclaimed, declare the disclaimer and extent thereof, and be signed by the disclaimant. [1975 c.480 s.2 (enacted in lieu of 112.675); 1981 c.55 s.1]

112.655 When disclaimer filed; delivery; where filed; notice. (1) An instrument disclaiming a present interest shall be delivered not later than nine months after the death of the decedent or the donee of the power.

(2) An instrument disclaiming a future interest shall be delivered not later than nine months after the event that determines that the taker of the property or interest is finally ascertained and the interest indefeasibly vested.

(3) However, in either case, as to a transfer creating an interest in the disclaimant made after December 31, 1976, and subject to tax under chapter 11, 12 or 13 of the Internal Revenue Code of 1954, as amended, a disclaimer intended as a qualified disclaimer thereunder must be delivered not later than nine months after the later of the date the transfer is made or the day on which the person disclaiming attains age 21.

(4) The disclaimer shall be delivered in person or mailed by registered or certified mail to any personal representative, or other fiduciary, of the decedent or the donee of the power or to the holder of the legal title to which the interest relates. A copy of the disclaimer may be filed in the court exercising probate jurisdiction of the county in which proceedings have been commenced for the administration of the estate of the deceased owner or deceased donee of the power or, if they have not been commenced, in which they could be commenced. If real property or an interest therein is disclaimed, a copy of the disclaimer may be recorded in the office of the recorder of the county in which the real estate is situated. [1975 c.480 s.3 (enacted in lieu of 112.675); 1981 c.55 s.2]

112.657 Devolution of disclaimed interest. (1) Unless the decedent or donee of the power has provided for another disposition, the property or interest disclaimed devolves:

(a) As to a present interest, as if the disclaimant had predeceased the decedent or, if the disclaimant is designated to take under a power of appointment exercised by a testamentary instrument, as if the disclaimant had predeceased the donee of the power; and

(b) As to a future interest, as if the disclaimant had died before the event determining that the taker of the property or interest had become finally ascertained and the interest is indefeasibly vested.

(2) A disclaimer relates back for all purposes to the date of the death of the decedent, or of the donee of the power, or the determinative event, as the case may be. [1975 c.480 s.4 (enacted in lieu of 112.675); 1981 c.55 s.3]

112.660 Bar of right to disclaim; existence of right notwithstanding restriction; effect. (1) The right to disclaim property or an interest therein is barred by:

(a) An assignment, conveyance, encumbrance, pledge, or transfer of the property or interest, or a contract therefor;

(b) A written waiver of the right to disclaim;

(d) A sale of the property or interest under judicial sale made before the disclaimer is effected.

(2) The right to disclaim exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.

(3) The disclaimer or the written waiver of the right to disclaim is binding upon the disclaimant or person waiving and all persons claiming through or under the disclaimant or person waiving. [1975 c.480 s.5 (enacted in lieu of 112.675); 1981 c.55 s.4]

112.662 Effect of ORS 112.650 to 112.667 on rights under other statutes. ORS 112.650 to 112.667 do not abridge the right of a person to waive, release, disclaim, or renounce property or an interest therein under any other statute. [1975 c.480 s.6 (enacted in lieu of 112.675)]

112.665 Application to existing interest. An interest in property existing on April 9, 1981, as to which, if a present interest, the time for delivering a disclaimer under ORS 112.650 to 112.667 has not expired, or if a future interest, the interest has not become indefeasibly vested or the taker finally ascertained, may be disclaimed within nine months after April 9, 1981. [1975 c.480 s.7 (enacted in lieu of 112.675); 1981 c.55 s.5]

112.667 Uniformity in application. ORS 112.650 to 112.667 shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of ORS 112.650 to 112.667 among states enacting it. [1975 c.480 s.8 (enacted in lieu of 112.675)]

112.675 [1969 c.591 s.77; repealed by 1975 c.480 s.1 (112.650 to 112.667 enacted in lieu of 112.675)]

DOWER AND CURTESY ABOLISHED

112.685 Dower and curtesy abolished. Dower and curtesy, including inchoate dower and curtesy, are abolished, but any right to or estate of dower or curtesy of the surviving spouse of any person who died before July 1, 1970, shall continue and be governed by the law in effect immediately before that date. [1969 c.591 s.78]

112.695 Statute of limitation for recovery of dower or curtesy. No action or suit shall be brought after 10 years from the death of a decedent to recover or reduce to possession curtesy or dower by the surviving spouse of the decedent. [Formerly 113.090]

UNIFORM DISPOSITION OF

COMMUNITY PROPERTY RIGHTS

AT DEATH ACT

112.705 Short title. ORS 112.705 to 112.775 may be cited as the Uniform Disposition of Community Property Rights at Death Act. [1973 c.205 s.11]

112.715 Application to certain property. ORS 112.705 to 112.775 apply to the disposition at death of the following property acquired by a married person:

(1) All personal property, wherever situated:

(a) Which was acquired as or became, and remained, community property under the laws of another jurisdiction; or

(b) All or the proportionate part of that property acquired with the rents, issues, or income of, or the proceeds from, or in exchange for, that community property; or

(2) All or the proportionate part of any real property situated in this state which was acquired with the rents, issues or income of, the proceeds from, or in exchange for, property acquired as or which became, and remained, community property under the laws of another jurisdiction, or property traceable to that community property. [1973 c.205 s.1]

112.725 Rebuttable presumptions. In determining whether ORS 112.705 to 112.775 apply to specific property the following rebuttable presumptions apply:

(1) Property acquired during marriage by a spouse of that marriage while domiciled in a jurisdiction under whose laws property could then be acquired as community property is presumed to have been acquired as or to have become, and remained, property to which ORS 112.705 to 112.775 apply; and

(2) Real property situated in this state and personal property wherever situated acquired by a married person while domiciled in a jurisdiction under whose laws property could not then be acquired as community property, title to which was taken in a form which created rights of survivorship, is presumed not to be property to which ORS 112.705 to 112.775 apply. [1973 c.205 s.2]

112.735 One-half of property not subject to testamentary disposition or right to elect against will. Upon death of a married person, one-half of the property to which ORS 112.705 to 112.775 apply is the property of the surviving spouse and is not subject to testamentary disposition by the decedent or distribution under the laws of succession of this state. One-half of that property is the property of the decedent and is subject to testamentary disposition or distribution under the laws of succession of this state. With respect to property to which ORS 112.705 to 112.775 apply, the one-half of the property which is the property of the decedent is not subject to the surviving spouse's right to elect against the will. [1973 c.205 s.3]

112.745 Proceedings to perfect title. If the title to any property to which ORS 112.705 to 112.775 apply was held by the decedent at the time of death, title of the surviving spouse may be perfected by an order of the probate court or by execution of an instrument by the personal representative or the heirs or devisees of the decedent with the approval of the court. Neither the personal representative nor the court in which the decedent's estate is being administered has a duty to discover or attempt to discover whether property held by the decedent is property to which ORS 112.705 to 112.775 apply, unless a written demand is made by the surviving spouse or the spouse's successor in interest. [1973 c.205 s.4]

112.755 Who may institute proceedings. If the title to any property to which ORS 112.705 to 112.775 apply is held by the surviving spouse at the time of the decedent's death, the personal representative or an heir or devisee of the decedent may institute an action to perfect title to the property. The personal representative has no fiduciary duty to discover or attempt to discover whether any property held by the surviving spouse is property to which ORS 112.705 to 112.775 apply, unless a written demand is made by an heir, devisee, or creditor of the decedent. [1973 c.205 s.5]

112.765 Rights of purchaser. (1) If a surviving spouse has apparent title to property to which ORS 112.705 to 112.775 apply, a purchaser for value or a lender taking a security interest in the property takes interest in the property free of any rights of the personal representative or an heir or devisee of the decedent.

(2) If a personal representative or an heir or devisee of the decedent has apparent title to property to which ORS 112.705 to 112.775 apply, a purchaser for value or a lender taking a security interest in the property takes interest in the property free of any rights of the surviving spouse.

(3) A purchaser for value or a lender need not inquire whether a vendor or borrower acted properly.

(4) The proceeds of a sale or creation of a security interest shall be treated in the same manner as the property transferred to the purchaser for value or a lender. [1973 c.205 s.6]

112.775 Application and construction. (1) ORS 112.705 to 112.775 do not affect rights of creditors with respect to property to which ORS 112.705 to 112.775 apply.

(2) ORS 112.705 to 112.775 do not prevent married persons from severing or altering their interests in property to which ORS 112.705 to 112.775 apply.

(3) ORS 112.705 to 112.775 do not authorize a person to dispose of property by will if it is held under limitations imposed by law preventing testamentary disposition by that person.

(4) ORS 112.705 to 112.775 shall be so applied and construed as to effectuate their general purpose to make uniform the law with respect to the subject of ORS 112.705 to 112.775 among those states which enact it. [1973 c.205 ss.7,8,9,10]

DISPOSITION OF WILLS

112.800 Definition for ORS 112.800 to 112.830. As used in ORS 112.800 to 112.830, unless the context requires otherwise, “person” means a natural person, a partnership, a corporation, a bank, a trust company and any other organization or legal entity. [1989 c.770 s.1]

Note: 112.800 to 112.830 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 112 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

112.805 Exclusive manner of disposing of wills; destroyed will not revoked. (1) Any person having custody of a will has a duty to maintain custody of the will and may not destroy or discard the will, disclose its contents to any person or deliver the will to any person except as authorized by the testator or as permitted by ORS 112.800 to 112.830.

(2) Nothing in ORS 112.800 to 112.830 bars a testator from destroying, revoking, delivering to any person or otherwise dealing with the will of the testator.

(3) A will destroyed in accordance with ORS 112.800 to 112.830 shall not be revoked by virtue of such destruction and its contents may be proved by secondary evidence. [1989 c.770 ss.2,7,10]

Note: See note under 112.800.

112.810 Duties of custodian of will. Any person having custody of a will:

(1) Shall deliver the will to the testator upon demand from the testator, unless the person having custody of the will is an attorney and is entitled to retain the will pursuant to ORS 87.430;

(2) May at any time deliver the will to the testator;

(3) Upon demand from the conservator, shall deliver the will to a conservator for the testator;

(4) Upon demand from the attorney-in-fact, shall deliver the will to an attorney-in-fact acting under a durable power of attorney signed by the testator expressly authorizing the attorney-in-fact to demand custody of the will;

(5) May deliver the will to any attorney licensed to practice law in Oregon willing to accept delivery of the will if the person does not know or cannot ascertain, upon diligent inquiry, the address of the testator; or

(6) Shall deliver the will to a court having jurisdiction of the estate of the testator or to a personal representative named in the will within 30 days after the date of receiving information that the testator is dead. [1989 c.770 s.3]

Note: See note under 112.800.

112.815 Conditions for disposal of will. An attorney who has custody of a will may dispose of the will in accordance with ORS 112.820 if:

(1) The attorney is licensed to practice law in the State of Oregon;

(2) At least 40 years has elapsed since execution of the will;

(3) The attorney does not know and after diligent inquiry cannot ascertain the address of the testator; and

(4) The will is not subject to a contract to make a will or devise or not to revoke a will or devise. [1989 c.770 s.4]

Note: See note under 112.800.

112.820 Procedure for destruction of will; filing of affidavit; fee. (1) An attorney authorized to destroy a will under ORS 112.815 may proceed as follows:

(a) The attorney shall first publish a notice in a newspaper of general circulation in the county of the last-known address of the testator, if any, otherwise in the county of the principal place of business of the attorney. The notice shall state the name of the testator, the date of the will and the intent of the attorney to destroy the will if the testator does not contact the attorney within 90 days after the date of the notice.

(b) If the testator fails to contact the attorney within 90 days after the date of the notice, the attorney may destroy the will.

(c) Within 30 days after destruction of the will, the attorney shall file with the probate court in the county where the notice was published an affidavit stating the name of the testator, the name and relationship of each person named in the will whom the testator identified as related to the testator by blood, adoption or marriage, the date of the will, proof of the publication and the date of destruction.

(d) The clerk of the probate court shall charge and collect a fee of $15 for filing of the affidavit.

(2) If a will has not been admitted to probate within 40 years following the death of the testator, an attorney having custody of the will may destroy the will without notice to any person or court. [1989 c.770 ss.5,6]

Note: See note under 112.800.

112.825 Liability for destruction of will. A person who violates any provision of ORS 112.800 to 112.830 shall be liable to any person injured by such violation for any damages sustained thereby. An attorney who destroys a will in accordance with ORS 112.800 to 112.830 shall not be liable to the testator or any other person for such destruction or disposal. [1989 c.770 s.8]

Note: See note under 112.800.

112.830 Court may order delivery of will. If it appears to a court having jurisdiction of the estate of a decedent that a person has custody of a will made by the decedent, the court may issue an order requiring that person to deliver the will to the court. [1989 c.770 s.9]

Note: See note under 112.800.