(2) If after application of the surviving spouse’s estate under subsection (1) of this section the elective share amount is not fully satisfied, the following amounts shall be applied to the extent necessary to satisfy the balance of the elective share amount:
(a) Amounts included in the decedent’s probate estate.
(b) Amounts included in the decedent’s nonprobate estate under ORS 114.600 to 114.725.
(3) Unless otherwise provided by a will, trust or other instrument executed by the decedent spouse:
(a) Amounts applied against the unsatisfied balance of an elective share amount under subsection (2) of this section shall be collected from both the probate and nonprobate estates of the decedent in a manner that ensures that the probate and nonprobate estates bear proportionate liability for the amounts necessary to pay the elective share amount.
(b) Amounts applied against the unsatisfied balance of an elective share amount under subsection (2) of this section out of the probate estate of the decedent must be apportioned among all recipients of the decedent’s probate estate in a manner that ensures that each recipient bears liability for a portion of the payment that is proportionate to the recipient’s interest in the decedent’s probate estate.
(c) Amounts applied against the unsatisfied balance of an elective share amount under subsection (2) of this section out of the nonprobate estate of the decedent must be apportioned among all recipients of the decedent’s nonprobate estate in a manner that ensures that each recipient bears liability for a portion of the payment that is proportionate to the recipient’s interest in the decedent’s nonprobate estate.
(4) All apportionments under this section between the probate and nonprobate estates of the decedent and among the recipients of those estates shall be based on the assets of each estate that are subject to distribution by the court under the provisions of ORS 114.600 to 114.725.
(5) In any proceeding described in ORS 114.610, the court may allocate the cost of storing and maintaining property included in the augmented estate pending distribution of the property. [2009 c.574 §16; 2011 c.305 §6]