Hunt & Associates P.C.

No Shark Fin Soup for You: Recent Changes to Oregon Laws

Possessors of shark fins, you now have one day (if you read this on December 30, 2011, to sell, trade or distribute any shark fins that you have in your possession.  After December 31, 2011 you will no longer be able to sell, trade or distribute shark fins in Oregon without a license.  California has enacted a similar law.  After December 31, 2011, you also cannot possess shark fins in Oregon – unless you acquired the fin before January 1, 2012.

This begs the question, how will the authorities know if you gained possession of a shark fin before or after December 31, 2011?  If you’re pulled over and the officer sees the shark fin hanging from your rear view mirror you may be arrested if you cannot prove when you purchased the fin.  You may want to use a permanent marker to mark the fin with the date you gained possession or if you still have the receipt, affix it to the shark fin with a stapler.  You may also want to leave the fin at home.

There are also a few other laws that become effective as of January 1, 2012 in Oregon.  Following is a brief rundown of some new laws and changes to old laws that become effective in 2012:

A.        Drunk Driving:

The most significant change to Oregon’s DUII laws is the requirement that anyone entering the DUII diversion program for a DUII arrest that occurs on or after January 1, 2012 will be required to place an ignition interlock device (IID) in their vehicle if they want to drive during the diversion period.

An IID is a small device wired to your vehicle’s ignition which measures whether alcohol is on your breath.  If it detects alcohol then the ignition will not start. This amendment is fairly significant since the costs associated with the installation and maintenance of the device are high.  The IID device is also an inconvenient addition to a car, especially if the vehicle is the main family vehicle.

B.        Cell Phone Usage:

The legislature decided to close a loophole in Oregon’s ban on cell phone usage while driving by eliminating the exemption that allowed drivers to claim that they were using the cell phone for work purposes. Although the exemption was never clear, you can no longer check on the status of your fantasy team while flying down the freeway and claim that you were using the phone for “work” purposes.  In principle the exemption made sense, but in reality it became difficult to enforce.

C.        Estate Planning:

For changes in Oregon’s inheritance tax laws see my earlier post.  Significantly, the new laws will tie Oregon’s inheritance tax laws to 2010 federal estate tax laws.  However, the inheritance tax exemption level remains at $1.0 million rather than the federal exemption level of $5.0 million.   Essentially, the amendments make it easier to calculate Oregon’s inheritance tax.

In addition to changes in the inheritance tax laws, Oregon’s legislature enacted the “Real Property Transfer on Death Act”.  Many other states have enacted similar laws in the past which make it easier for an owner of real property (such as a parent) to transfer real property to a designated beneficiary or beneficiaries when the owner dies.

In the past, property owners frequently add a child or other individual as an owner of the real property as a joint tenant with right of survivorship.  This would give the individual an ownership interest in the property and result in unintended tax consequences and other issues.  By using a “transfer on death deed” the owner avoids transferring an ownership interest in the property during his life and ensures that the property will transfer to a beneficiary, or beneficiaries, automatically without the need for probate.

Although this may be an effective “probate avoidance” technique, individuals should consult with an attorney before deciding to use a transfer on death deed.  The transfer on death deed is not effective in transferring the personal property in the house or on the property and cannot be used for any other assets. Consequently, even if you decide to use a transfer on death deed, additional planning will be necessary.

D.        Divorce and Inheritance or Gifts from Parents

As a tie in to the above, say your dad leaves you a piece of property by transfer on death deed.  After he dies, you and your wife divorce.  During the divorce proceedings, your spouse wants ½ of the value of the property left to you by your father.

The old presumption was that the parties contributed equally to the acquisition of all property acquired during the marriage – including inherited property.  The presumption could be rebutted if the inheriting spouse could prove that the individual making the gift or the bequest did not intend for the other spouse to inherit any portion of the property.  Due to evidentiary rules overcoming this presumption was difficult.

Beginning January 1, 2012 the presumption will now be the opposite – property acquired by a party as a gift, beneficiary designation, or inheritance made to that specific individual will be presumed to be that party’s separate property.  In order for this presumption to apply, the spouse receiving the property must continuously keep the property separate from other marital property.  In other words, depositing your $1.0 million inheritance into the joint checking account or transferring the property to you and your spouse as joint owners destroys this presumption.  The presumption can also be overcome by offering proof that the gift, bequest or inheritance was intended to benefit the marital estate.

Of course, courts still have the ability to divide this property as the court deems “just and proper” depending on the facts of each case.  In its application, it is possible for judges to award a spouse all separately inherited property but reducing that’s spouse’s interest in jointly owned property to make a “just and proper” distribution.

E.         Employment Agreements

Oregon law permits employers to have employees sign employment agreements that require all disputes arising from the employee’s employment to be subject to mandatory arbitration.  Old law required any such employment agreement to be provided to the employee at least 14 days prior to the employee’s first day of employment.  The newly acted law only requires 72 hour notice.  If the agreement also contains a non-competition clause you still will need to provide the agreement to the employee at least 14 days before the employee’s first day of employment.

Due to the complexities associated with employment agreements, employers should consult with an attorney to bring their employment agreements up to compliance with state laws.

This list is a brief overview of some of the laws enacted by Oregon’s legislature.  Every year Oregon’s legislature is busy changing laws and adding new ones. This list is a small sampling of the changes and additions made during the 2011 calendar year.   If you have questions about these or any other changes or would like additional information you should consult with an attorney.

© 12/30/2011 Kevin J. Tillson of Hunt & Associates, P.C.  All rights reserved.

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