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In Tennessee when an individual dies without a will (intestate) and there is no surviving spouse, how is the property distributed?

Posted on Apr 3 2013 4:32PM by Attorney, Jason A. Lee

If an individual dies without a will (intestate) in Tennessee, T.C.A. § 31-2-104 governs how the estate of the deceased is split up among the heirs.  The Tennessee legislature has set up a statutory structure for the distribution of an estate for someone who dies without a will.

 

T.C.A. § 31-2-104(b) provides as follows:

 

(b) The part of the intestate estate not passing to the surviving spouse under subsection (a) or the entire intestate estate if there is no surviving spouse, passes as follows:

(1) To the issue of the decedent; if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation;

(2) If there is no surviving issue, to the decedent's parent or parents equally;

(3) If there is no surviving issue or parent, to the brothers and sisters and the issue of each deceased brother and sister by representation; if there is no surviving brother or sister, the issue of brothers and sisters take by representation; or

(4) If there is no surviving issue, parent, or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there is no surviving grandparent or issue of grandparent on either the paternal or maternal side, the entire estate passes to the relatives on the other side in the same manner as the half.

 

T.C.A. § 31-2-104(a) (the preceding section in this statute) discusses how property is distributed when there is a surviving spouse.  Subsection (b) deals with the situation where there is no surviving spouse.  The order of priority based on the above statute (when there is no surviving spouse) is basically as follows:

 

1.          Issue of the decedent (including adopted children) are the first level of priority for distribution.  The term “Issue” is defined by statute in T.C.A. § 31-1-101 which provides as follows:

 

(6) “Issue” of a person means all the person's lineal descendants, adopted as well as natural born, of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in this title;

 

            This will mainly include children and grandchildren of the deceased.  So if there are three children of the deceased and they are all living at the time of the deceased’s death, then the three split the estate 1/3 each.  If there are two children that are alive and there is one deceased child who left two children (grandchildren of the deceased) then the two grandchildren would get 1/3 of the estate each and the two grandchildren would split the other 1/3 equally (1/6 share each).

 

2.          If there are no surviving "issue" (basically no children, grandchildren or other lineal descendants) then the estate passes to the decedent's surviving parent or parents (if there are two parents, they share the estate equally). 

 

3.          If there are no surviving issue (basically no children, grandchildren or other lineal descendants) and there are no surviving parents, then the estate is distributed to the brothers and sisters of the decedent and the “issue” of each deceased brother and sister "by representation".  For example, if there are no issue of the decedent, no parents of the decedent and the decedent has two living brothers and one deceased sister who has two living children, then the two living brothers would get a 1/3 share of the estate and the two nieces of the deceased would share the 1/3 share of their mother equally (and therefore get a 1/6 share of the estate each).

 

4.          If there is no surviving issue, no surviving parents, no surviving siblings or issue of siblings but the deceased is survived by one or more grandparents or issue of grandparents, then the estate is distributed pursuant to subsection (b)(4) which is somewhat complicated and not easily described in this blog post.  However, the statutory language is listed above and if you are in this situation it is best to carefully consider this language and talk to a Tennessee probate attorney about how to handle this situation.   

 

Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates site.

TAGS: Intestate, Intestate Succession, Surviving Spouse, 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
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Phone: 615-540-1004
E-mail: jlee@burrowlee.com

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