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The surviving spouse of an intestate individual who dies (this is an individual who dies without a will) is entitled to a “support allowance” totaling one year of support after the death of the spouse. This option is also available to a surviving spouse who elects against the deceased's will (also called an elective share). T.C.A. § 30-2-102(a) provides as follows:
(a) In addition to the right to homestead, an elective share under title 31, chapter 4, and exempt property, the surviving spouse of an intestate, or a surviving spouse who elects to take against a decedent's will, is entitled to a reasonable allowance in money out of the estate for such surviving spouse's maintenance during the period of one (1) year after the death of the spouse, according to the surviving spouse's previous standard of living, taking into account the condition of the estate of the deceased spouse. The court may consider the totality of the circumstances in fixing the allowance authorized by this section, including assets that may have passed to the spouse outside probate.
As a result, the court considers all of the circumstances surrounding the estate as well as any money the spouse received outside of the probate estate to determine the amount of the “year’s support” in Tennessee. The court also takes into consideration the spouse’s standard of living to determine the appropriate amount of the support allowance.
It is important to note that this statute also provides that if the individual who died does not have a surviving spouse but instead is survived by minor unmarried children, then the support allowance (“year’s support”) can be provided to the unmarried minor children in Tennessee. This is provided for in T.C.A. § 30-2-102(b) which states as follows:
(b) The allowance so ordered shall be made payable to the surviving spouse, unless the court finds that it would be just and equitable to make a division of it between the unmarried minor children. If there is no surviving spouse, the allowance shall be made to the unmarried minor children.
Under T.C.A. § 30-2-104 the death of the surviving spouse within the one year period after the surviving spouse elects to receive the “year's support” allowance under T.C.A. § 30-2-102 does not affect the surviving spouse's entitlement to this money. T.C.A. § 30-2-104 provides:
(a) Death of a surviving spouse within the one-year period for which the allowance is provided under § 30-2-102, for the surviving spouse's maintenance, shall not affect the vested right of the surviving spouse to the allowance or the ordering thereof by the court.
(b) If an unmarried minor child dies, marries or comes of age, no allowance shall be made under § 30-2-102 for the minor's maintenance for any period after the child's death, marriage or coming of age.
The surviving spouse's entitlement to the year's support vests at the time of the election and can not be reversed even if the spouse does not live for the full year. However, an unmarried minor child’s “year’s support” provided for under T.C.A. § 30-2-102 ceases upon marriage, reaching the age of majority (18 years of age) or death.
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