Under Oregon law, if a person passes away (the “decedent”) without a Will/Estate Planning documents, their spouse is not guaranteed to inherit the whole Estate. Specifically, if the decedent has children from someone other than the surviving spouse, then those children will share in the Estate. Here’s how that estate would be distributed:
According to Oregon’s laws of intestate succession (when someone dies without a Will or Living Trust), the spouse inherits 50% of the decedent’s Estate, while the decedent’s children (from someone other than the current spouse) inherit the other 50%. This type of intestate succession can have heavy consequences for Estates where the decedent did not jointly title their residence with their current spouse. In these cases (where both spouses are not listed on the deed), the surviving spouse who wants to stay in the home must buy-out their stepchild’s share of the home or be forced to co-own the residence 50/50 with their stepchild. Even worse, in some instances, the stepchild can force a sale of the residence in order to collect their 50% of the estate. Further, because there is no surviving owner listed on the deed, this estate will typically require a full probate in Oregon in order to transfer the home to the spouse and stepchild.
The legislature has put into place some safeguards to protect against this situation when the surviving spouse might be left destitute. However, the Court’s understanding of “destitute” will typically look at whether someone is below the poverty line and will require government assistance for housing and food. If the spouse’s 50% share of the estate is sufficient to pay for housing and food, at least for the short term, then the court will be hesitant to set-aside more for the spouse than their 50%.
In short, if you wish to protect your spouse from the laws of intestacy, you should do your Estate Plan, including a Will or Living Trust, rather than relying on the Court and hoping that it divvies up your estate in the way you would have wanted.
If you have any questions regarding how your Estate will pass to your loved ones, please call us at 503-641-6262, or email us at info@myattandbell.com to schedule an appointment.
Please note that the above chart and information is for general purposes only and is not legal advice. You should consult with an Estate Planning Attorney to ensure that you have the appropriate documents in place to transfer your assets according to your wishes.
