✓ Verified September 2026
Oregon Surviving Spouse Rights exist because a will cannot cut a husband or wife out entirely. Every state protects a widow or widower with a share they may claim regardless of what the will says, plus allowances that come off the top before creditors and other heirs.
This guide gives the Oregon answer in plain English: what the elective share is, the deadline to claim it, whether trusts and joint accounts count, the homestead, exempt-property and family allowances, what happens when the marriage came after the will, and what forfeits the rights. All facts are from Oregon law, verified as of September 2026.
In This Oregon Guide:
Oregon Surviving Spouse Rights: At a Glance
Here are the Oregon facts that decide most Oregon surviving spouse rights claims:
| Elective share | Oregon gives a surviving spouse a sliding-scale elective share of the augmented estate under ORS 114.600 and ORS 114.605, not a flat fraction. The percentage is set by the length of the marriage: 5 percent if the couple was married less than 2 years, rising with each additional year of marriage, to a maximum of 33 percent for a marriage of 15 years or more. The dollar amount is the augmented estate multiplied by that percentage (ORS 114.605). The exact intermediate percentages for each year band are set in the ORS 114.605 table — UNVERIFIED here; confirm the row that matches the marriage length with the Oregon circuit court or a licensed Oregon attorney. |
| Deadline to elect | The election must be made not later than 9 months after the date of the decedent’s death (ORS 114.610). Oregon does not use a later “6 months after the will is admitted” alternative — the clock runs from death only, so the deadline can expire before probate is far along. The spouse either files a motion for exercise of the election in a probate proceeding already commenced under ORS 113.035, or files a petition to appoint a personal representative together with the motion, or petitions under ORS 114.720, all within the same 9 months. |
| Counts non-probate assets (augmented estate) | YES. Under ORS 114.630 the augmented estate is composed of the decedent’s probate estate (ORS 114.650), the decedent’s nonprobate estate (ORS 114.660 and ORS 114.665), and the surviving spouse’s own estate (ORS 114.675). The nonprobate component reaches revocable trusts, joint accounts and other survivorship property, beneficiary-designated assets, and certain transfers the decedent made. Values are reduced by enforceable claims against and encumbrances on the property (ORS 114.630). Because the spouse’s own assets are counted in the base, the practical recovery can be much smaller than the headline percentage. |
| Community property state | NO. Oregon is a separate-property (common law) state, so there is no automatic one-half community interest for the surviving spouse. Protection comes instead from the elective share against the augmented estate under ORS 114.600 to 114.725, plus the support and occupancy rights in ORS 114.005 to 114.085. Community property acquired while the couple lived in a community property state and brought into Oregon keeps its character and should be raised with an Oregon attorney. |
| Homestead allowance | Oregon does not set a dollar homestead allowance for a surviving spouse. Instead, ORS 114.005 gives the spouse and dependent children who were occupying the decedent’s principal dwelling at the date of death the right to continue occupying it until one year after the death, or until the earlier termination of the decedent’s interest if that interest was a leasehold or otherwise less than a fee. The dwelling remains exempt from execution to the same extent it was exempt while the decedent was living (ORS 114.005). |
| Exempt property | NONE as a fixed dollar allowance. Oregon did not adopt the Uniform Probate Code’s separate exempt-property allowance for household goods and a vehicle, so there is no set figure to claim for those items. The functional substitute is the court-ordered provision for support of the spouse and dependent children under ORS 114.015, which the court may award in cash or in kind, together with the one-year dwelling occupancy right in ORS 114.005. |
| Family allowance | The court may order provision for support of the surviving spouse and dependent children on petition under ORS 114.015, in an amount and of a nature the court considers reasonably necessary for their welfare — a reasonableness standard, not a fixed sum — and may allow temporary support by order while that petition is pending. Periodic money payments may not continue more than 2 years after the date of death (ORS 114.055). Support has priority over claims and expenses of administration and is not charged against the recipient’s distributive share (ORS 114.035), and it may be modified or terminated by further order (ORS 114.045). |
| Court / filing | The circuit court for the Oregon county where the estate is or would be probated, sitting in its probate department or capacity — Oregon circuit courts have probate jurisdiction (ORS 114.720 directs the petition to circuit court). — A motion for exercise of the election, filed in the probate proceeding for the deceased spouse’s estate (ORS 114.610). Where no proceeding is open, it is a petition for appointment of a personal representative filed together with the motion, or a petition for the exercise of the election under ORS 114.720. Copies must be served on the personal representative, on everyone entitled to information under ORS 113.145, and on distributees and recipients of augmented estate property who can be located with reasonable effort. |
Why the Will Cannot Disinherit a Spouse in Oregon
The law treats marriage as an economic partnership. A spouse who spent decades contributing to a household is not left to the mercy of a will written in anger, under pressure, or decades ago. In separate-property states the protection is the elective share: a fixed fraction of the estate the surviving spouse may take instead of whatever the will provides.
In community property states it is built in — half of everything acquired during the marriage already belongs to the survivor and never passes under the will at all. Oregon uses one of those two systems, and the table above says which.
The right is personal to the spouse and must be claimed. Nothing happens automatically: a surviving spouse who does nothing takes what the will gives, even if that is nothing. The election has a deadline, it is filed in the probate court, and it is the single Oregon surviving spouse rights fact that a grieving spouse most often learns too late.
The Oregon Elective Share
Oregon gives a surviving spouse a sliding-scale elective share of the augmented estate under ORS 114.600 and ORS 114.605, not a flat fraction. The percentage is set by the length of the marriage: 5 percent if the couple was married less than 2 years, rising with each additional year of marriage, to a maximum of 33 percent for a marriage of 15 years or more.
The dollar amount is the augmented estate multiplied by that percentage (ORS 114.605). The exact intermediate percentages for each year band are set in the ORS 114.605 table — UNVERIFIED here; confirm the row that matches the marriage length with the Oregon circuit court or a licensed Oregon attorney.
The deadline: The election must be made not later than 9 months after the date of the decedent’s death (ORS 114.610). Oregon does not use a later “6 months after the will is admitted” alternative — the clock runs from death only, so the deadline can expire before probate is far along.
The spouse either files a motion for exercise of the election in a probate proceeding already commenced under ORS 113.035, or files a petition to appoint a personal representative together with the motion, or petitions under ORS 114.720, all within the same 9 months.
What counts: YES. Under ORS 114.630 the augmented estate is composed of the decedent’s probate estate (ORS 114.650), the decedent’s nonprobate estate (ORS 114.660 and ORS 114.665), and the surviving spouse’s own estate (ORS 114.675). The nonprobate component reaches revocable trusts, joint accounts and other survivorship property, beneficiary-designated assets, and certain transfers the decedent made. Values are reduced by enforceable claims against and encumbrances on the property (ORS 114.630).
Because the spouse’s own assets are counted in the base, the practical recovery can be much smaller than the headline percentage.
Community property: NO. Oregon is a separate-property (common law) state, so there is no automatic one-half community interest for the surviving spouse. Protection comes instead from the elective share against the augmented estate under ORS 114.600 to 114.725, plus the support and occupancy rights in ORS 114.005 to 114.085.
Community property acquired while the couple lived in a community property state and brought into Oregon keeps its character and should be raised with an Oregon attorney.
Allowances the Spouse Gets on Top of the Will
Homestead: Oregon does not set a dollar homestead allowance for a surviving spouse. Instead, ORS 114.005 gives the spouse and dependent children who were occupying the decedent’s principal dwelling at the date of death the right to continue occupying it until one year after the death, or until the earlier termination of the decedent’s interest if that interest was a leasehold or otherwise less than a fee.
The dwelling remains exempt from execution to the same extent it was exempt while the decedent was living (ORS 114.005).
Exempt property: NONE as a fixed dollar allowance. Oregon did not adopt the Uniform Probate Code’s separate exempt-property allowance for household goods and a vehicle, so there is no set figure to claim for those items.
The functional substitute is the court-ordered provision for support of the spouse and dependent children under ORS 114.015, which the court may award in cash or in kind, together with the one-year dwelling occupancy right in ORS 114.005.
Family allowance: The court may order provision for support of the surviving spouse and dependent children on petition under ORS 114.015, in an amount and of a nature the court considers reasonably necessary for their welfare — a reasonableness standard, not a fixed sum — and may allow temporary support by order while that petition is pending.
Periodic money payments may not continue more than 2 years after the date of death (ORS 114.055). Support has priority over claims and expenses of administration and is not charged against the recipient’s distributive share (ORS 114.035), and it may be modified or terminated by further order (ORS 114.045).
Married After the Will Was Signed
Oregon has no omitted-spouse share; it uses a stronger rule. Under ORS 112.305, a will is revoked entirely by the testator’s later marriage if the testator is survived by that spouse, so the estate typically passes by intestate succession.
Three exceptions preserve the will: the will shows an intent that it not be revoked by the marriage or was drafted in contemplation of it; the couple signed a written contract before the marriage that either provides for the spouse or states the spouse takes no rights in the estate; or the testator executed the will after entering a registered domestic partnership and later married that partner.
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Waiver and Disqualification in Oregon
The right of election may be waived wholly or partially, before or after marriage, by a written contract, agreement or waiver signed by the surviving spouse (ORS 114.620).
Unless it says otherwise, an agreement waiving “all rights” or equivalent language in a present or prospective spouse’s property or estate, or a complete property settlement made after or in anticipation of separation or divorce, waives the elective share and renounces intestate benefits and benefits under any will executed before the agreement (ORS 114.620(2)).
Agreements signed before January 1, 2011 remain effective unless a court finds them unenforceable under the ORS 114.620 standards; ask counsel about the disclosure and enforceability requirements that apply to a specific agreement.
What forfeits the rights: Divorce or annulment after the will is executed revokes all provisions in favor of the former spouse and any nomination of the former spouse as executor, and the will takes effect as though that person did not survive (ORS 112.315) — a divorce that is final before death ends spousal status entirely, though a merely pending dissolution generally does not.
A complete property settlement entered after or in anticipation of separation or divorce operates as a waiver of the elective share (ORS 114.620(2)). A spouse who is a slayer or a qualifying abuser is treated as having predeceased the decedent and takes nothing (ORS 112.455 to 112.555; ORS 112.465). Oregon does not list simple abandonment or desertion as a statutory forfeiture.
If there is no will: With no will, the surviving spouse takes the entire net intestate estate if the decedent left no descendants or if all surviving descendants are also descendants of the spouse, and one-half if any surviving descendant is not a descendant of the spouse (ORS 112.025; ORS 112.035). The Oregon dying-without-a-will guide linked below covers that in full.
Other Oregon rules: Oregon’s 2009 elective share rewrite (House Bill 3077) applies to deaths on or after January 1, 2011; earlier deaths follow the prior flat-fraction law.
Three features are distinctly Oregon: the share scales with marriage length rather than being fixed (ORS 114.605); the augmented estate base counts the surviving spouse’s own property (ORS 114.675), which can reduce or eliminate a recovery; and later marriage revokes the whole will rather than triggering an omitted-spouse share (ORS 112.305). ORS 114.615 and ORS 114.700 credit and prioritize the sources from which the share is paid.
Dower and curtesy are abolished, and registered domestic partners hold the same rights as spouses (ORS 106.340).
Mistakes That Cost a Surviving Spouse in Oregon
The first mistake is waiting. The election to take the statutory share has a deadline that runs from death or from the will’s admission, and the probate court cannot extend it for a spouse who did not know. The second is assuming the will is the whole picture.
A spouse who was left “the house” may be entitled to considerably more under the Oregon surviving spouse rights rules — and may also be entitled to allowances the will never mentions.
The third mistake is signing something in the first weeks. A release, a family settlement, or a disclaimer offered by another heir can waive rights the spouse did not know they had. The last is overlooking a prenuptial agreement.
If one exists, it may have waived the elective share — but only if it met the state’s requirements for disclosure and fairness at the time, which is a question a lawyer should answer before anyone relies on it.
What to Expect When You Claim Oregon Surviving Spouse Rights
Claiming Oregon surviving spouse rights is a filing inside the probate case, not a separate lawsuit. The surviving spouse files the election and any allowance requests with the court, the personal representative calculates the estate the share is measured against, and the court resolves any dispute over what counts.
Where the will already gives the spouse more than the statutory share, the election is unnecessary and most spouses do not file one.
Two things surprise people. The first is how much depends on the calendar — the election deadline is short in some states and runs whether or not the spouse knew. The second is that the allowances are separate from the share and are paid first, ahead of creditors, which is often what keeps a surviving spouse in the home during the months the estate takes to settle.
You don’t have to do this alone
If you are settling a loved one’s estate in Oregon, your state’s probate court self-help center and free legal-aid offices can walk you through the process at no cost. For an active probate or a deadline, talk to a licensed probate attorney in your state.
Key Takeaways: Oregon Surviving Spouse Rights
- The will cannot disinherit you: Oregon surviving spouse rights guarantee a share the spouse may claim no matter what the will says.
- You must elect: Oregon surviving spouse rights are not automatic; the statutory share is claimed by a filing in the probate court.
- The deadline is short: the election that secures Oregon surviving spouse rights runs from death or the will’s admission and cannot be extended for not knowing.
- Allowances come first: the homestead, exempt-property, and family allowances under Oregon surviving spouse rights are paid before creditors and heirs.
- Trusts may count: in augmented-estate states, Oregon surviving spouse rights reach assets placed in trusts and joint accounts, not only probate property.
- Community property is different: where it applies, half is already the survivor’s, and Oregon surviving spouse rights are about the other half.
- A late marriage changes the will: a spouse married after the will was signed usually takes an intestate share under Oregon surviving spouse rights.
- Prenups can waive: Oregon surviving spouse rights can be given up in a prenuptial or postnuptial agreement, but only one that met the state’s disclosure rules.
- Separation can forfeit: a pending divorce or abandonment can end Oregon surviving spouse rights in some states before the death.
- Sign nothing early: a release or disclaimer offered by another heir can waive Oregon surviving spouse rights the spouse never knew about.
- Compare before you elect: Oregon surviving spouse rights are worth claiming only when the statutory share exceeds what the will gives.
- The intestate share is separate: when there is no will, Oregon surviving spouse rights are set by the intestacy rules on the companion guide.
Quick Answers: Oregon Surviving Spouse Rights
What are Oregon Surviving Spouse Rights if the will leaves the spouse nothing?
A statutory share — commonly a third to a half of the estate — plus allowances paid ahead of creditors. Oregon Surviving Spouse Rights exist precisely for this case, but they must be claimed by a filing.
How long does a spouse have to claim Oregon Surviving Spouse Rights?
A fixed period after death or after the will is admitted, set by statute. Missing it forfeits the statutory share, which is the most common way Oregon surviving spouse rights are lost.
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Official Oregon Sources & Resources
- Oregon Probate Court: https://www.courts.oregon.gov/courts/multnomah/go/pages/probate.aspx
- Oregon Elective Share Statute: https://www.oregonlegislature.gov/bills_laws/ors/ors114.html
- Internal Revenue Service — Estate Tax: irs.gov
- Cornell Legal Information Institute: law.cornell.edu/wex
This Oregon guide was last verified against official sources in September 2026. Laws change — verify with your state court or a licensed attorney.
More Oregon Estate Guides
- Contest a Will in Oregon
- Oregon Medicaid Estate Recovery
- Dying Without a Will in Oregon
- Oregon Probate Process
- When a Spouse Died With Debt
- All State Guides
Disclaimer: This guide is informational only and is not legal or tax advice. Estate, probate, and tax laws change and vary by state and county. Verify current rules and dollar figures with your state’s court, statute, or a licensed attorney or tax professional before acting. For urgent matters like an active probate or a tax deadline, consult a licensed professional in your state right away.