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It is important to determine who qualifies as a surviving spouse under Tennessee law for purposes of certain statutes that provide surviving spouses with substantial benefits and options (including elective share, homestead, year's support etc.). T.C.A. § 31-1-102 provides that a person who is divorced from a deceased individual is not considered a "surviving spouse" under Tennessee law (assuming they have not remarried post divorce and are married at the time of death). The same is true for an annulled marriage. An individual whose marriage was annulled from a decedent is not considered a "surviving spouse" under Tennessee law.
A decree of separation that does not actually terminate the status of husband and wife is a different matter. The decree of separation is not considered a divorce or final and therefore that individual is still a "surviving spouse" under Tennessee law.
T.C.A. § 31-1-102 provides in its entirety as follows:
(a) A person who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the person is married to the decedent at the time of death. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.
(b) For purposes of this title, a surviving spouse does not include:
(1) A person who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless they subsequently participate in a marriage ceremony purporting to marry each to the other, or subsequently live together as husband and wife;
(2) A person who, following a valid or invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third person; or
(3) A person who was a party to a valid marital dissolution agreement or a valid proceeding concluded by an order purporting to terminate all marital property rights.
Interestingly, as long as a divorce is not finalized then the "surviving spouse" is still entitled to "surviving spouse" privileges under T.C.A. § 31 even if a divorce proceeding is pending. See Oakley v. Oakley, 686 S.W.2d 85 (Tenn. Ct. App. 1984).
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