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Oregon: What Rights Does a Surviving Spouse Have When a Spouse Dies Without a Will?

August 11, 2025 7 min read

Quick answer

If your spouse died without a will (intestate) in Oregon, you generally have priority rights to inherit under Oregon’s intestacy rules and to participate in or control the probate process. You also have immediate practical rights (for example, to ask the court to appoint you as the personal representative, to request temporary control of assets, and to protect family and exempt property). If the decedent’s relatives are excluding you from decisions or access to property, you can start a probate case and ask the court to enforce your rights. This article explains the basic steps, where to look in Oregon law, and practical tips for protecting your position.

Detailed answer — your legal rights and practical steps in Oregon

1. What “intestate” means and where Oregon law describes it

Dying intestate means the deceased did not leave a valid will. Oregon’s rules that decide who inherits when there is no will are in the Oregon statutes governing intestate succession. These rules allocate the decedent’s probate estate to the surviving spouse and other relatives according to family relationships. See the Oregon intestate succession statutes for the full rules: ORS Chapter 112 (Intestate Succession).

2. Immediate practical rights you usually have as the surviving spouse

  • Priority to inherit the decedent’s probate estate under intestacy rules (meaning you are usually at the top of the list to receive property that passes through probate).
  • Priority to be appointed the personal representative (sometimes called executor) of the estate. If you want to administer the estate you can file a petition asking the probate court to appoint you. Courts generally give priority to the surviving spouse for appointment. See the Oregon probate rules for appointment and administration: ORS Chapter 115 (Administration of Estates).
  • Rights to certain protection and allowances during administration. Oregon law provides mechanisms (for example, exempt property, family allowances, and homestead protections) that can protect some property and provide support while the estate is being administered. These protections are meant to keep a surviving spouse from being left without basic necessities during probate.
  • Priority to control disposition of the decedent’s remains and certain funeral decisions—normally the surviving spouse has primary authority. If family members are interfering, you may enforce your decision-making rights through the court or, in urgent situations, local authorities.

3. What to do if the decedent’s family is “cutting you out”

If relatives are excluding you from decisions or are removing or withholding property, consider these steps:

  1. Document everything. Keep records of communications, photographs of property, lists of missing items, and any threats or actions taken by relatives.
  2. Obtain the death certificate and proof of your marriage. These are essential for filing probate papers and asserting your rights.
  3. Check for and preserve assets that don’t pass by will (bank accounts with POD/transfer-on-death designations, jointly titled property, life insurance or retirement accounts with named beneficiaries). Beneficiary designations generally control regardless of intestacy.
  4. If relatives are removing property or otherwise acting improperly, contact local law enforcement for possible theft or trespass and preserve evidence. For example, if someone is removing household goods, take dated photographs and witness statements.
  5. File a petition to open probate in the county where the decedent lived. When you open probate you can ask the court to appoint you as the personal representative and to issue orders protecting estate property. The probate court can impose temporary protections and ultimately enforce the intestacy distribution rules.
  6. If immediate relief is needed, ask the court for temporary or emergency relief (for example, an order enjoining family members from removing property or an order granting you temporary possession). Probate courts can act quickly in urgent situations.

4. How intestate distribution typically works (overview)

Oregon’s intestacy law sets the order and share of inheritance (for example: spouse, children, parents, siblings). The exact share a surviving spouse receives depends on who else survives the decedent (for example, whether there are children or parents). Because the precise allocation can be fact-dependent, look at ORS Chapter 112 for the detailed statutory scheme: ORS Chapter 112. If there are disputes about who counts as a child, paternity, or community property issues, the court will resolve them during probate.

5. Personal representative and your ability to control decisions

When you are appointed the personal representative by the probate court, you gain legal authority to collect assets, pay valid debts, manage estate property, and distribute the estate according to Oregon law. If relatives are trying to make decisions outside the court process, they generally have no authority unless the court gives it to them.

6. Where to get forms and how to start probate in Oregon

Probate is opened in the county where the decedent lived. Many Oregon courts provide self-help packets and basic forms for opening probate and asking the court to appoint a personal representative. The Oregon Judicial Department and county court websites have local instructions. For statutory guidance see: ORS Chapter 115 (Administration of Estates).

7. Common complications

  • Assets that pass outside probate (beneficiary-designated accounts, jointly owned property) may not be subject to intestacy and could already have transferred to others.
  • Disputes over whether property is community property, jointly held, or owned solely by the decedent can affect distribution.
  • If the decedent and spouse were separated but not legally divorced, or if there are questions about the validity of the marriage, those facts may affect inheritance rights.
  • Family members may attempt to delay probate. Filing the proper petition and asking the court for interim remedies can control delays or improper conduct.

Helpful hints — practical checklist and tips

  • Gather essential documents right away: certified death certificate(s), marriage certificate, any pre- or postnuptial agreement, deeds, titles, bank statements, retirement account statements, insurance policies, and lists of personal property.
  • Look for beneficiary designations before starting probate. Life insurance and retirement accounts pass to named beneficiaries even if there is no will.
  • If you want to control the probate process, file early to be appointed personal representative — courts generally give the surviving spouse priority to serve.
  • Ask the probate court for temporary orders if family members are removing or disposing of property. Courts can issue quick orders to protect estate assets.
  • Keep careful records of all estate transactions you make as personal representative — the court will require accounting before final distribution.
  • If relatives threaten violence or theft, call law enforcement and preserve evidence; criminal charges or emergency protective orders may be necessary in addition to probate remedies.
  • Consider mediation for family disputes — sometimes an early mediated agreement avoids long and costly court battles.
  • Even if you cannot afford an attorney, many counties have probate self-help resources and some nonprofit or legal aid programs that assist survivors with probate procedures.

When to get legal help

You should consult an attorney if the estate is substantial, if relatives are disputing ownership or attempting to take property, if there are questions about paternity or community property, or if someone is challenging your right to serve as personal representative. An attorney can file the necessary petitions, request emergency orders, and represent you in contested hearings.

Where the statutes are

Key Oregon statutes and chapter pages (for reading the precise language):

Final summary

As a surviving spouse in Oregon when your spouse dies without a will, you generally have priority under intestacy rules, the right to seek appointment as personal representative, and statutory protections during probate. If family members are excluding you from decisions or removing property, act promptly: document conduct, preserve evidence, gather key documents, and open probate to protect your legal rights. For complex or contested situations, talk to an attorney who handles Oregon probate and family-property matters.

Disclaimer: This article is for general informational purposes only and is not legal advice. Laws change and every case is different. For advice about your specific situation, consult a licensed Oregon attorney.

The information on this site is for general informational purposes only, may be outdated, and is not legal advice; do not rely on it without consulting your own attorney.