Need for Elective Share Statute Reform in Oregon

Susan N. Gary (Professor of Law, Associate Dean for Academic Affairs, University of Oregon School of Law) has recently published her article entitled The Oregon Elective Share Statute: Is Reform an Impossible Dream?, 44 Willamette L. Rev. 337 (2007).

Here is the conclusion to her article:

Competing policies make elective share reform difficult. Legislatures considering a change to a state’s elective share will consider many goals: ease of administration of assets after a person dies, protection of each spouse when one spouse controls all the marital assets, fair treatment of spouses whether a marriage ends in divorce or death, protection against the loss of Medicaid benefits, and protection of the state’s need for reimbursement when assets become available to a person who has received government assistance in paying for long-term medical care. No elective share statute can meet all of these competing policies equally, but a carefully constructed elective share statute can come closer than many existing statutes. An elective share statute could base the elective share on marital assets, defined in the statute by reference to certain types of assets held by the spouses and adjusted in some cases by the use of a rebuttable presumption. The use of an elective share trust to defer Medicaid reimbursement until the second death could benefit the qualified spouse without cheating the state.

Oregon’s elective share statute applies only to those persons who either want it to apply or who do not have access to good legal counsel. An optional elective share statute has no place in the law. Reform could substantially improve the law applicable to marital assets and result in more fair treatment to spouses and to the state. It is hoped that this article will serve as a useful resource for law reform in Oregon and in other states considering changes to their elective share statutes.