|
A surviving spouse can choose to receive
an elective
share (see prior post
describing the details of an elective share under Tennessee law) of the
decedent's property by filing a notice with the court and delivering the notice
to the personal representative. The
surviving spouse must file a petition for an elective share within nine months
after the date of the death. 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 this time limit is provided in the statute if there is litigation
pending about the title of the surviving spouse to property devised or bequeathed
by the will such that an elective share determination could not be made with
sufficient information. If this type of
litigation exists then the surviving spouse has an additional year from the
date of the probate of the will within which to elect. Additionally, the court can extend that date
further due to the litigation if requested.
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 demand for an elective share at any time for the entry of a
final determination by the court under T.C.A.
§ 31-4-102(c). Obviously factual
circumstances can change as the estate moves through the Tennessee probate
process. 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 very 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. A Tennessee probate attorney can assist in
this process in advising a client about the appropriate steps to take that allow
for the best outcome.
Follow me on Twitter at @jasonalee for
updates from the Tennessee Wills and Estates blog.
|