A prenuptial agreement can be a useful tool for contracting around a surviving spouse's statutory rights. This is especially true in the case of a second marriage or domestic partnership where there are children from prior relationships.
If a married or registered domestic partnership couple reside in Oregon at the time of death, the surviving spouse or registered partner is entitled to elect against the decedent's will and take a portion of the decedent's estate. Under current law, that share is 25% of the decedent's estate. This right can be waived by an agreement in writing signed before or after the marriage.
Oregon also provides a homestead allowance for a suriving spouse, registered domestic partner and/or dependent children. They have the right to continue to occupy the place of abode after a decedent's death for a period of one year. The occupants must keep the property insured, pay property taxes and maintain the residence.
The court may also order support for the surviving spouse or registered partner or dependent children from a decedent's estate. This support may include the transfer of title of property or periodic payments. This support has priority over other creditors and designated beneficiaries within a will. Also, the support is not counted against the recipient's inheritance from the decedent.
If a decedent dies without a valid will, then their estate will be distributed according to intestate succession. Under Oregon intestate succession law, a surviving spouse or registered domestic partner will receive all of a decedent's estate, unless there are children from a prior relationship. In such cases, all of the decedent's children will receive 50% of the net intestate estate and the surviving spouse or registered domestic partner will receive the other 50%.
If your estate planning intent is something other than these statutory rights for your future spouse or registered domestic partner, then you should consider a prenuptial agreement as part of your asset protection or estate planning.
