Detailed Answer
Under Oregon law, a surviving spouse may claim a family allowance from the decedent’s estate during probate under ORS 114.105. To qualify, the claimant must prove the marital relationship. Normally, this proof is a certified marriage certificate issued under ORS 92.140. If the original certificate is incomplete, damaged, or missing, you can:
- Request a certified duplicate from the county clerk (ORS 92.140).
- Provide alternative or secondary evidence under the Oregon Evidence Code (ORS 40.510–40.680), such as witness affidavits, church or hospital records, joint tax returns, or correspondence referring to the marriage.
The probate court has discretion to accept secondary evidence if it establishes the marriage by a preponderance of the evidence. However, lacking a timely certificate can delay processing your allowance claim. You may need to file a motion with the court explaining the missing document, submit affidavits, and request an order allowing alternative proof of marriage. If you still cannot obtain a certificate, the court can grant your claim based on credible secondary evidence.
Key statutes:
- ORS 114.105 (Family allowance): oregonlegislature.gov §114.105
- ORS 92.140 (Marriage certificate duplicates): oregonlegislature.gov §92.140
- Oregon Evidence Code (Secondary evidence): ORS 40.510–40.680
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney to discuss your specific situation.
Helpful Hints
- Contact the county clerk’s office where your marriage was recorded to request a duplicate certificate.
- Gather all documents that reference your marriage to support secondary proof.
- Prepare sworn affidavits from witnesses who can attest to the marriage.
- File any necessary motions promptly to avoid deadlines in the probate process.
- Consider hiring an attorney to navigate probate court procedures.