When is a Surviving Spouse Required to Make Election to Obtain Elective Share Against the Estate in Tennessee?

Posted on Nov 13 2016 8:25PM by Attorney, Jason A. Lee

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.

TAGS: Probate Process, Statute of Limitations, Elective Share, Tennessee Probate Law
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Jason A. Lee is a Member of Burrow Lee, PLLC. Contact Jason at 615-540-1004 or jlee@burrowlee.com for an initial consultation on wills estate planning and probate issues.

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Tennessee Wills and Estates Blog
Jason A. Lee, Member of Burrow Lee, PLLC
611 Commerce Street, Suite 2603
Nashville, TN 37203
Phone: 615-540-1004
E-mail: jlee@burrowlee.com