114.725. ����� (5) In no event may the value of property be included in the augmented estate more than once. [2009 c.574 �8; 2011 c.305 �4; 2017 c.169 �26] ����� 114.635 Exclusions from augmented

114.725.

����� (5) In no event may the value of property be included in the augmented estate more than once. [2009 c.574 �8; 2011 c.305 �4; 2017 c.169 �26]

����� 114.635 Exclusions from augmented estate. The augmented estate does not include:

����� (1) Any value attributable to future enhanced earning capacity of either spouse;

����� (2) Any property that is irrevocably transferred before the death of the decedent spouse;

����� (3) Any property that is transferred on or after the date of the death of the decedent spouse with the written joinder or written consent of the surviving spouse;

����� (4) Any property that is community property under ORS 112.705 to 112.775 or under the laws of the jurisdiction where the property is located; or

����� (5) Any property that is held by either spouse solely in a fiduciary capacity. [2009 c.574 �9; 2011 c.305 �1]

(Decedent�s Probate Estate)

����� 114.650 Decedent�s probate estate. For purposes of ORS 114.600 to 114.725, a decedent�s probate estate is the value of all estate property that is subject to probate and that is available for distribution after payment of claims and expenses of administration. A decedent�s probate estate includes all property that could be administered under a simple estate affidavit pursuant to ORS 114.505 to 114.560. A decedent�s probate estate does not include any property that constitutes a probate transfer to the decedent�s surviving spouse under ORS 114.685. [2009 c.574 �10; 2023 c.17 �19]

(Decedent�s Nonprobate Estate)

����� 114.660 Decedent�s nonprobate estate. For purposes of ORS 114.600 to 114.725, a decedent�s nonprobate estate consists of the property described in ORS 114.665 that is not included in the decedent�s probate estate and that does not constitute a transfer to the decedent�s surviving spouse. The value of the decedent�s nonprobate estate is reduced by all debts and liabilities of the decedent that are not paid in probate, and by all costs of administering the decedent�s nonprobate estate that are incurred for the purpose of settling claims against the nonprobate estate and distributing the nonprobate estate property to the persons entitled to that property. [2009 c.574 �11; 2011 c.305 �2]

����� 114.665 Decedent�s nonprobate estate; property owned immediately before death. (1) A decedent�s nonprobate estate includes the decedent�s fractional interest in property held by the decedent in any form of survivorship tenancy immediately before the death of the decedent. The amount included in the decedent�s nonprobate estate under the provisions of this subsection is the value of the decedent�s fractional interest, to the extent the fractional interest passes by right of survivorship at the decedent�s death to a surviving tenant other than the decedent�s surviving spouse.

����� (2) A decedent�s nonprobate estate includes the decedent�s ownership interest in property or accounts held immediately before death under a payable on death designation or deed, under a transfer on death registration or in co-ownership registration with a right of survivorship. The amount included in the decedent�s nonprobate estate under the provisions of this subsection is the value of the decedent�s ownership interest, to the extent the decedent�s ownership interest passed at the decedent�s death to any person other than the decedent�s estate or surviving spouse or for the benefit of any person other than the decedent�s estate or surviving spouse.

����� (3) A decedent�s nonprobate estate includes any property owned by the decedent immediately before death for which the decedent had the power to designate a beneficiary, but only to the extent that the decedent could have designated the decedent, or the spouse of the decedent, as the beneficiary.

����� (4) A decedent�s nonprobate estate includes any property that immediately before death the decedent could have acquired by the exercise of a revocation, without regard to whether the revocation was required to be made by the decedent alone or in conjunction with other persons.

����� (5) A decedent�s nonprobate estate does not include the present value of any life insurance policy payable on the death of the decedent. [2009 c.574 �12; 2011 c.305 �3]

(Surviving Spouse�s Estate)

����� 114.675 Surviving spouse�s estate. (1) For purposes of ORS 114.600 to 114.725, a surviving spouse�s estate is:

����� (a) The decedent�s probate transfers to the spouse, as described in ORS 114.685.

����� (b) The decedent�s nonprobate transfers to the spouse, as described in ORS 114.690.

����� (c) All other property of the spouse, as determined on the date of the decedent�s death.

����� (d) Any property that would have been included under paragraph (a), (b) or (c) of this subsection except for the exercise of a disclaimer by the spouse after the death of the decedent.

����� (2)(a) For the purpose of establishing the value of the surviving spouse�s estate under this section, the estate includes 100 percent of the corpus of any trust or portion of a trust from which all income must be distributed to or for the benefit of the surviving spouse during the life of the surviving spouse, and for which the surviving spouse has a general power of appointment that the surviving spouse, acting alone, may exercise, during the surviving spouse�s lifetime or at death of the surviving spouse, to or for the benefit of the surviving spouse or the surviving spouse�s estate.

����� (b) For the purpose of establishing the value of the surviving spouse�s estate under this section, the estate includes 100 percent of the corpus of a trust or portion of a trust created by the decedent spouse, if all income from the trust or portion of a trust must be distributed to or for the benefit of the surviving spouse during the life of the surviving spouse and the trust principal may be accessed only by the trustee or the spouse and only for the purpose of providing for the health, education, support or maintenance of the spouse.

����� (c) For the purpose of establishing the value of the surviving spouse�s estate under this section, the estate includes 50 percent of the corpus of a trust or portion of a trust created by the decedent spouse if all income from the trust or portion of a trust must be distributed to or for the benefit of the surviving spouse during the life of the surviving spouse and neither the trustee nor the spouse has the power to distribute trust principal to or for the benefit of the surviving spouse or any other person during the spouse�s lifetime.

����� (d) For the purposes of this section, all amounts distributed to a surviving spouse from a unitrust that meets the requirements of ORS 129.225 (4) shall be considered income.

����� (e) The value of the surviving spouse�s beneficial interest in a trust other than a trust described in paragraphs (a) to (d) of this subsection shall be determined under the provisions of ORS 114.630 (3) and (4). [2009 c.574 �13; 2011 c.305 �5]

(Decedent�s Probate Transfers to Spouse)

����� 114.685 Decedent�s probate transfers to surviving spouse. The decedent�s probate transfers to the decedent�s surviving spouse include all estate property that is subject to probate, that passes to the surviving spouse by testate or intestate succession, and that is available for distribution to the surviving spouse after payment of claims and expenses of administration. [2009 c.574 �14]

(Decedent�s Nonprobate Transfers to Spouse)

����� 114.690 Decedent�s nonprobate transfers to surviving spouse. (1) Except as provided in subsection (2) of this section, the decedent�s nonprobate transfers to the decedent�s surviving spouse include all property that passed outside probate at the decedent�s death from the decedent to the surviving spouse by reason of the decedent�s death, including:

����� (a) The decedent�s fractional interest in property held in any form of survivorship tenancy, as described in ORS 114.665 (1), to the extent that the decedent�s fractional interest passed to the surviving spouse as surviving tenant;

����� (b) The decedent�s ownership interest in property or accounts held in co-ownership registration with the right of survivorship, to the extent that the decedent�s ownership interest passed to the surviving spouse as surviving co-owner;

����� (c) Insurance proceeds payable to the surviving spouse by reason of the death of the decedent; and

����� (d) All other property that would have been included in the decedent�s nonprobate estate under ORS 114.660 and 114.665 had it passed to or for the benefit of a person other than the decedent�s spouse.

����� (2) The decedent�s nonprobate transfers to the decedent�s surviving spouse do not include any property passing to the surviving spouse under the federal Social Security Act. [2009 c.574 �15]

(Payment of Elective Share)

����� 114.700 Priority of sources from which elective share payable. (1) The surviving spouse�s estate, as described in ORS 114.675, 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.

����� (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]

����� 114.705 Liability of recipients of decedent�s nonprobate estate. (1) The following recipients of the decedent�s nonprobate estate are the only persons who may be required to make a proportional contribution toward the satisfaction of the surviving spouse�s elective share under the provisions of ORS 114.600 to 114.725:

����� (a) An original recipient of all or part of the decedent�s nonprobate estate.

����� (b) A person who has received all or part of the decedent�s nonprobate estate for less than fair consideration from an original recipient of the property, to the extent the person has the property or proceeds of the property.

����� (2) A recipient of all or part of the decedent�s nonprobate estate who is required to make a proportional contribution toward the satisfaction of the surviving spouse�s elective share may elect to make the contribution by returning property determined to be adequate to satisfy the recipient�s obligation or by paying money equal to the value of that property. [2009 c.574 �17]

����� 114.710 Protective order. (1) If a surviving spouse has filed a motion or petition described in ORS