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A surviving spouse has the ability to obtain
an elective share (see prior post
describing the details of an elective share under Tennessee law) of a decedent's
property by filing a notice with the court.
The surviving spouse is required to file a petition for an elective
share within nine months after the date of the death of their spouse. T.C.A. § 31-4-102(a)(1) provides as
follows:
(a)(1) The surviving
spouse may elect to take the spouse's elective share in decedent's property by
filing in the court and mailing or delivering to the personal representative,
if any, a petition for the elective share within nine (9) months after the date
of death.
Additionally, an
extension of the 9-month time period is allowed if there is litigation pending
about the title of certain property such that an elective share determination could
not be made with sufficient information.
If this type of litigation is going on, then the surviving spouse has an
additional year from the date of the probate of the will within which to make
the election. T.C.A. § 31-4-102(a)(2) provides as follows:
(2) When the title
of the surviving spouse to property devised or bequeathed by the will is
involved in litigation pending so that an election to take the elective share
cannot be advisedly made, the survivor shall have an additional year from the
date of the probate of the will within which to elect; provided, that the court
may upon a proper showing further extend the time to meet the exigency of
litigation, not concluded, and, that application for allowance of additional
time, in either case, be made to the court, for record of its action thereon.
The surviving spouse
may also withdraw a request for elective share at any time before the entry of
a final determination by the court. (See T.C.A. § 31-4-102(c)). Obviously
factual circumstances can change as the estate moves through the Tennessee
probate process and the surviving spouse may determine that they will fare
better not making an elective share request.
This portion of the statute provides:
(c) The surviving
spouse may withdraw a demand for an elective share at any time before entry of
a final determination by the court.
It is important for a surviving spouse to
carefully consider his or her options for an elective share. This can be a complicated process as there
are many other rights the spouse needs to take into consideration beyond the
simple elective share decision. A
Tennessee probate attorney should be hired to help assist to provide the best
advice on how to handle this decision.
Follow me on Twitter at @jasonalee for updates from the Tennessee
Wills and Estates blog.
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