(2) If after application of the surviving spouse’s estate under subsection (1) of this section the elective share amount is not fully satisfied, the following amounts shall be applied to the extent necessary to satisfy the balance of the elective share amount:
(a) Amounts included in the decedent’s probate estate.
(b) Amounts included in the decedent’s nonprobate estate under ORS 114.600 to 114.725.
(3) Unless otherwise provided by a will, trust or other instrument executed by the decedent spouse:
(a) Amounts applied against the unsatisfied balance of an elective share amount under subsection (2) of this section shall be collected from both the probate and nonprobate estates of the decedent in a manner that ensures that the probate and nonprobate estates bear proportionate liability for the amounts necessary to pay the elective share amount.
(b) Amounts applied against the unsatisfied balance of an elective share amount under subsection (2) of this section out of the probate estate of the decedent must be apportioned among all recipients of the decedent’s probate estate in a manner that ensures that each recipient bears liability for a portion of the payment that is proportionate to the recipient’s interest in the decedent’s probate estate.
(c) Amounts applied against the unsatisfied balance of an elective share amount under subsection (2) of this section out of the nonprobate estate of the decedent must be apportioned among all recipients of the decedent’s nonprobate estate in a manner that ensures that each recipient bears liability for a portion of the payment that is proportionate to the recipient’s interest in the decedent’s nonprobate estate.
(4) All apportionments under this section between the probate and nonprobate estates of the decedent and among the recipients of those estates shall be based on the assets of each estate that are subject to distribution by the court under the provisions of ORS 114.600 to 114.725.
(5) In any proceeding described in ORS 114.610, the court may allocate the cost of storing and maintaining property included in the augmented estate pending distribution of the property. [2009 c.574 §16; 2011 c.305 §6]
Structure 2021 Oregon Revised Statutes
Volume : 03 - Landlord-Tenant, Domestic Relations, Probate
Chapter 114 - Administration of Estates Generally
Section 114.005 - Occupancy of principal dwelling of decedent by spouse and children.
Section 114.015 - Support of spouse and children.
Section 114.025 - Petition for support and answer.
Section 114.055 - Nature of support.
Section 114.215 - Devolution of and title to property; custody of pets.
Section 114.225 - Possession and control of decedent’s estate.
Section 114.305 - Transactions authorized for personal representative.
Section 114.325 - Power to sell, mortgage, lease and deal with property.
Section 114.355 - Sale or encumbrance to personal representative voidable; exceptions.
Section 114.365 - Validation of certain sales.
Section 114.405 - Personal liability of personal representative.
Section 114.415 - Copersonal representatives; when joint action required.
Section 114.425 - Discovery of property, writings and information.
Section 114.441 - Definitions for ORS 114.441 to 114.462.
Section 114.444 - Application.
Section 114.447 - Court approval of settlement of personal injury claim or wrongful death claim.
Section 114.450 - Deferral of requirements.
Section 114.453 - Petition for appointment of personal representative.
Section 114.459 - Waiver of requirements.
Section 114.505 - Definitions for ORS 114.505 to 114.560.
Section 114.510 - Value limitations for small estate.
Section 114.525 - Content of affidavit; rules.
Section 114.537 - Safe deposit boxes.
Section 114.540 - Procedure for claims.
Section 114.542 - Summary determination.
Section 114.547 - Sales and transfers to third parties.
Section 114.549 - Liability of affiant.
Section 114.552 - Filing fees.
Section 114.555 - Transfer of interest of decedent in property described in affidavit.
Section 114.560 - Exclusive remedy.
Section 114.600 - Elective share generally.
Section 114.605 - Amount of elective share.
Section 114.610 - Manner of making election.
Section 114.620 - Waiver of right to elect and other rights.
Section 114.630 - Augmented estate.
Section 114.635 - Exclusions from augmented estate.
Section 114.665 - Decedent’s nonprobate estate; property owned immediately before death.
Section 114.675 - Surviving spouse’s estate.
Section 114.690 - Decedent’s nonprobate transfers to surviving spouse.
Section 114.700 - Priority of sources from which elective share payable.
Section 114.705 - Liability of recipients of decedent’s nonprobate estate.