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

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

What is Exempt Property in a Tennessee Estate for a Surviving Spouse or Minor Children?

Analysis:  T.C.A. § 30-2-101 provides that a surviving spouse of a person who died without a will (intestate decedent) or a surviving spouse who elects against their spouse’s will (this is called an elective share under T.C.A. § 31-4-101) is entitled to receive certain exempt property from the estate.  Specifically, the surviving spouse can receive exempt property having a fair market value that does not exceed $50,000.00 as stated in T.C.A. § 30-2-101 as follows:

(a) The surviving spouse of an intestate decedent, or a spouse who elects against a decedent's will, is entitled to receive from the decedent's estate the following exempt property having a fair-market value (in excess of any indebtedness and other amounts secured by any security interests in the property) that does not exceed fifty thousand dollars ($50,000):

(1) Tangible personal property normally located in, or used in or about, the principal residence of the decedent and not used primarily in a trade or business or for investment purposes, and

(2) A motor vehicle or vehicles not used primarily in a trade or business. If there is no surviving spouse, the decedent's unmarried minor children are entitled as tenants in common only to exempt property as described in subdivision (a)(1). Rights to this exempt property are in addition to any benefit or share passing to the surviving spouse or unmarried minor children by intestate succession, elective share, homestead or year's support allowance.

This exempt property is in addition to other benefits (including the elective share, homestead or year’s support allowance) the surviving spouse or minor child would receive as specifically stated in subsection (a)(2).  If there is no surviving spouse then unmarried minor children are entitled to own the exempt property as tenants in common with each other.  Keep in mind that exempt property doe...

In Tennessee when is a surviving spouse required to make an election to receive an elective share against the estate?

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. ...

What is the elective share for a surviving spouse under Tennessee law?

A surviving spouse of an intestate decedent (a person who died without a will) or a surviving spouse who elects against a will (testate situation) has a right of election under T.C.A. § 31-4-101.  Specifically, this statute provides that depending on the length of the marriage, the surviving spouse can elect to receive a certain percentage of the net estate instead of receiving what is provided for in the will or in an intestate situation.  T.C.A. § 31-4-101(a) provides as follows:

(a)(1) The surviving spouse of an intestate decedent who elects against taking an intestate share, or a surviving spouse who elects against a decedent's will, has a right of election, unless limited by subsection (c), to take an elective-share amount equal to the value of the decedent's net estate as defined in subsection (b), determined by the length of time the surviving spouse and the decedent were married to each other, in accordance with the following schedule:

Under Tennessee law can a fraudulent conveyance that is made to defeat the elective share option of the "surviving spouse" be voided?

Under Tennessee law any conveyance by the decedent that is made in a fraudulent manner to children or any other individual in order to defeat the "surviving spouse’s distributive or elective share" is voidable at the option of the surviving spouse.  This situation can arise where an individual knows he or she is going to die soon, and therefore conveys property or other assets to another individual in order to try to remove it from the estate so it would not go to the surviving spouse.  Since the spouse has a right to certain benefits under Tennessee Law including an elective share, such a distribution that is done for a fraudulent purpose can be voided.

T.C.A. § 31-1-105 is the Tennessee statute that basically prevents an individual from successfully transferring assets prior to death in order to reduce the value of the estate that is subject to the elective share option under Tennessee law.  T.C.A. § 31-1-105 provides as follows:

Any conveyance made fraudulently to children or others, with an intent to defeat the surviving spouse of the surviving spouse's distributive or elective share, is, at the election of the surviving spouse, includable in the decedent's net estate under § 31-4-101(b), and voidable to the extent the other assets in the decedent's net estate are insufficient to fund and pay the elective share amount payable to the surviving spouse under § 31-4-101(c).

As a result, if gifts or conveyances are made to children or any other individual, those gifts or conveyances can be voided by the court if requested by the surviving spouse.  This will be done to protect the surviving spouse's entitlement to an elective share.  The elective share of a surviving spouse will be discussed in a subsequent post however, the main part of the statute, T.C.A. § 31-4-101(a) provides as follows:

If an individual dies without a will (intestate) in Tennessee and they leave a surviving spouse and children, what happens to the decedent’s property?

When an individual dies without a will (intestate) Tennessee statutes govern the distribution of their estate including all of their assets and property.  T.C.A. § 31-2-104 provides that if there is a surviving spouse then the distribution is as follows:

(a) The intestate share of the surviving spouse is:

(1) If there is no surviving issue of the decedent, the entire intestate estate; or

(2) If there are surviving issue of the decedent, either one-third (1/3) or a child's share of the entire intestate estate, whichever is greater.

Surviving Spouse only (with no surviving “issue”):

As a result, if there is a surviving spouse with no “issue” from the decedent then the surviving spouse takes the entire estate.  The next question is, what does it mean to have surviving “issue” of the decedent?  Issue is defined in T.C.A. § 31-1-101 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 includes children but it also includes grandchildren (and also others but children and grandchildren are the most common examples of “issue”). 

Surviving Spouse with surviving “issue”:

If the decedent had surviving “issue” then the surviving spouse gets a one-third share of the estate or a child's share of the estate, whichever is greater.  This means that if there is a surviving spouse and one chi...

What is the "year's support” allowance under Tennessee law for a surviving spouse or minor child?

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: 

Is someone who is divorced, separated or had their marriage annulled from a decedent considered a "surviving spouse" under Tennessee law?

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.