Oregon law, for title research

Is Oregon a community property state? No: just and proper division, tenancy by the entirety, and community property from other states

Every rule below is quoted from the Oregon Revised Statutes or another official source, linked and checked on the date shown. General information, not legal advice.

How does Oregon divide a married couple's property?

By what is just and proper. ORS 107.105(1)(f) lets the court, in a judgment of annulment, dissolution or separation, divide the real or personal property of either or both spouses as may be just and proper in all the circumstances. The court counts a spouse's contribution as a homemaker as a contribution to acquiring marital assets, treats a retirement plan or pension as property, and considers reasonable costs of sale, taxes and other anticipated costs.

Among the rules for that division, ORS 107.105(1)(f)(C) presumes that both spouses contributed equally to property acquired during the marriage, whether held jointly or separately. The presumption is rebuttable, and subparagraph (D) excepts certain gifts.

Is an inheritance separate property in Oregon?

It can be kept outside the presumption. ORS 107.105(1)(f)(D) says property acquired by gift to one spouse during the marriage, and separately held by that spouse on a continuing basis from the time it was received, is not subject to the presumption of equal contribution. The statute defines gift broadly: property acquired through gift, devise, bequest, operation of law, beneficiary designation or inheritance. The court still divides all property as just and proper, so the exception removes a presumption rather than deciding the result.

What happens to title when an Oregon divorce is filed?

Two sections speak directly to the land. If real property is involved, ORS 107.085(5) lets the petitioner record a notice of pendency when the petition is filed. After filing and service, ORS 107.093(2)(c) restrains each party from transferring, encumbering, concealing or disposing of property in which the other has an interest, without written consent or a court order, except in the usual course of business or for necessities of life.

In the division itself, once a petition for annulment, dissolution or separation is filed, ORS 107.105(1)(f)(E) treats the spouses' rights in the marital assets as a species of co-ownership. A transfer of marital assets under a judgment entered on or after October 4, 1977, is considered a partitioning of jointly owned property. A title search looks for the notice, the judgment and any deed carrying it out.

How do Oregon spouses hold title together?

As tenants by the entirety, unless the deed says otherwise. ORS 93.180(1)(b) provides that a conveyance or devise of real property to spouses married to each other creates a tenancy by the entirety unless it clearly and expressly declares otherwise.

For other co-owners the default is a tenancy in common. ORS 93.180(1)(a), (2) and (3) provide that a deed to two or more persons creates a tenancy in common unless it clearly and expressly declares a right of survivorship; a declared right of survivorship creates a tenancy in common in the life estate with cross-contingent remainders in the fee simple; and joint tenancy in real property is abolished except for trustees and personal representatives under ORS 93.190, so the words joint tenants by themselves create a tenancy in common. ORS 105.920 separately provides for joint tenancy in personal property.

An entirety can end before death. ORS 108.090(3) says a conveyance from one spouse to the other of the spouse's interest is valid and dissolves the estate. ORS 112.475(1) says that where a slayer or abuser and the decedent held by the entirety or with survivorship, there exist two undivided equal interests at the death.

Did Oregon ever have community property?

Yes. ORS chapter 108 still has a group of sections headed community property matters. They name two laws: the Oregon Community Property Law of 1943, chapter 440, which spouses elected into, and the Community Property Law of 1947, chapter 525, along with the act repealing it. These are the sections a long Oregon chain of title can run into.

ORS 108.510 lets spouses who elected into the 1943 law revoke the election, despite any repeal of that law. They file a notice with the Secretary of State with a 15 dollar fee, and the Secretary sends a certificate to each county's recording officer. Filing restores title to any community property to its status on the date they filed the certificate of election, and they may still record conveyances to put that on record.

For the 1947 law, ORS 108.520 keeps rights acquired prior to April 11, 1949, except as the next two sections provide. ORS 108.530 lets spouses convert community property acquired during marriage between July 5, 1947 and April 11, 1949 by a writing signed by both spouses, and for real property the writing describes the land, is executed and acknowledged like a deed, and is recorded in each county where the land lies. ORS 108.540 says that on a death after April 11, 1951, property that would have been the decedent's separate property but for the 1947 chapter passes by will or descent as separate property. Within those sections, ORS 108.550 protects a third person relying on either spouse's right to deal with property standing in that spouse's name, in such manner as the spouse is entitled to by law.

Does community property from another state still matter in Oregon?

At death, yes. Oregon enacted the Uniform Disposition of Community Property Rights at Death Act, ORS 112.705 to 112.775. Section 112.715(2) applies it to all or the proportionate part of Oregon real estate acquired with the income or proceeds of, or in exchange for, property that was acquired as and remained community property under the laws of another jurisdiction, or property traceable to it. The rebuttable presumptions in ORS 112.725 run both ways: property acquired during marriage while domiciled in a community property jurisdiction is presumed covered, and property acquired during marriage while domiciled elsewhere and titled with survivorship rights is presumed not covered.

When the act applies, ORS 112.735 makes one-half of the property the surviving spouse's, outside the decedent's will and outside intestate succession; the other half passes by will or succession. If the decedent held title at death, ORS 112.745 lets the survivor perfect title by a probate court order or by an instrument from the personal representative, heirs or devisees with court approval. Buyers have protection. Under ORS 112.765, where a personal representative, heir or devisee has apparent title, a purchaser for value or secured lender takes free of the surviving spouse's rights, and the reverse applies where the survivor has apparent title. Neither need inquire whether the vendor or borrower acted properly.

What happens to an Oregon spouse's real estate at death?

Dower plays no part: ORS 112.685 abolishes dower and curtesy, including inchoate dower and curtesy. Without a will, the surviving spouse takes the entire net intestate estate if every surviving descendant of the decedent is also the spouse's, or if there are no descendants, and one-half if any descendant is not the spouse's, under ORS 112.025 and 112.035.

The surviving spouse of an Oregon domiciliary may also claim an elective share under ORS 114.600 to 114.725. ORS 114.605 sets it by the length of the marriage, from 5 percent of the augmented estate for a marriage of less than 2 years to 33 percent for 15 years or more, and ORS 114.610 requires the claim to be filed within nine months after the death, whether by petition and motion, by motion in a probate proceeding already opened, or by petition under ORS 114.720. The share is a dollar amount under ORS 114.605(1), and the survivor's own estate is applied first under ORS 114.700(1). Survivorship interests count in the calculation under ORS 114.665 and 114.690, and community property does not under ORS 114.635(4). Only original recipients of the nonprobate estate, and transferees who paid less than fair consideration and still have the property or proceeds, can be required to contribute from it under ORS 114.705. The court may issue a protective order limiting transfers under ORS 114.710, and may deny or reduce the share if the spouses were living apart under ORS 114.725. The right may be waived in a signed writing under ORS 114.620.

ORS 112.570(1), in a definition for those sections, lists tenants by the entirety among co-owners with right of survivorship. A spouse and dependent children occupying the principal dwelling may stay on for a period under ORS 114.005, and the court provides for support from the estate under ORS 114.015.

What a title search checks on a married Oregon owner

A title check before buying reads the vesting deed for tenancy by the entirety or a declared right of survivorship, looks for a notice of pendency, a dissolution judgment and any deed carrying it out, and, after a death, checks for an elective share claim or protective order, a probate order, and signs that the property traces to community property from another state. Whether a spouse or former spouse still holds an interest is a legal conclusion for an Oregon attorney; the report shows the record it turns on.

A long chain can also show a certificate of election or a revocation under ORS 108.510, or a conversion agreement under ORS 108.530, from the community property laws of the 1940s.

The Oregon marital property rules on this page, with their sources

Sources: IRS Publication 555, Community Property; ORS chapter 107, section 107.105; ORS chapter 93, section 93.180; ORS chapter 112, section 112.570; ORS chapter 112, section 112.685; ORS chapter 112, sections 112.705 to 112.775; ORS chapter 112, sections 112.025 and 112.035; ORS chapter 114, sections 114.600 to 114.725; ORS chapter 108, section 108.510; ORS chapter 108, section 108.520; ORS chapter 108, section 108.530; ORS chapter 108, section 108.540; ORS chapter 108, section 108.550; ORS chapter 112, section 112.765; ORS chapter 114, section 114.605; ORS chapter 114, section 114.700; ORS chapter 114, section 114.705; ORS chapter 114, section 114.710; ORS chapter 114, section 114.665; ORS chapter 114, section 114.725; ORS chapter 114, section 114.635; ORS chapter 114, section 114.005; ORS chapter 107, section 107.085; ORS chapter 107, section 107.093; ORS chapter 105, section 105.920; ORS chapter 108, section 108.090; ORS chapter 112, section 112.475. Each row links the section it summarizes.

Questions people ask

More on how Oregon property law shapes a title search: title research in Oregon.