Persons Born Out of Wedlock Must Prove by Clear and Convincing Evidence that Deceased was Father to Inherit Under Intestate Succession in Tennessee

A recent Tennessee Court of Appeals decision, In re: Estate of Ole Irene Tucker, 2015 WL 7068134 (Tenn. Ct. App. 2015), discussed how a person qualifies as a person born out of wedlock for purposes of inheriting from a deceased individual in an intestate situation (a situation without a will).  In this case, an individual claimed to be a grandchild of a deceased individual.  A dispute arose as to whether this individual was actually the child of her purported father (who was the son of the deceased).  The question before the Court was whether this individual had standing to make a claim under the Tennessee intestate succession laws against the estate.  The trial court issued an order finding that this individual lacked standing and could not inherit under Tennessee law because she was not considered a person born out of wedlock under T.C.A. § 31-2-105. 

On appeal, the Tennessee Court of Appeals discussed the statute that governs this issue, T.C.A. § 31-2-105.  This statute provides as follows:

(a) If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:

(1) An adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent; and

(2) In cases not covered by subdivision (a)(1), a person born out of wedlock is a child of the mother. That person is also a child of the father, if:

(A) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

(B) The paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof, but the paternity established under this subdivision (a)(2)(B) is ineffective to qualify the father or the father's kindred to inherit from or through the child unless the father has openly treated the child as the father's, and has not refused to support the child.

(b) In no event shall a parent be permitted to inherit through intestate succession until all child support arrearages together with interest thereon at the legal rate of interest computed from the date each payment was due have been paid in full to the paren...

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...

Probate Law - When does Real Property become the Property of the Beneficiaries in Tennessee?

Under Tennessee law, real property of an intestate decedent (an individual who dies without a will) vests immediately in the heirs upon death.  Additionally, the real property of a testate decedent (an individual who dies with a will) vests immediately in the beneficiaries named in the will unless the will gives directions to administer the real property through the estate.  T.C.A. § 31-2-103 provides in totality as follows:

The real property of an intestate decedent shall vest immediately upon death of the decedent in the heirs as provided in § 31-2-104. The real property of a testate decedent vests immediately upon death in the beneficiaries named in the will, unless the will contains a specific provision directing the real property to be administered as part of the estate subject to the control of the personal representative. Upon qualifying, the personal representative shall be vested with the personal property of the decedent for the purpose of first paying administration expenses, taxes, and funeral expenses and then for the payment of all other debts or obligations of the decedent as provided in § 30-2-317. If the decedent's personal property is insufficient for the discharge or payment of a decedent's obligations, the personal representative may utilize the decedent's real property in accordance with title 30, chapter 2, part 4. After payment of debts and charges against the estate, the personal representative shall distribute the personal property of an intestate decedent to the decedent's heirs as prescribed in § 31-2-104, and the property of a testate decedent to the distributees as prescribed in decedent's will.

This statute does not mean that real property cannot be used to pay any debts or obligations of the decedent.  This statute specifically provides that if the decedent's personal property is insufficient to discharge all of the decedent's obligations then the real property can be sold to satisfy those obligations.  It is important to have an experienced Tennessee probate attorney to assist you when dealing with real estate property in the context of an estate.

Under Tennessee law, when are Gifts to a Child of the Deceased Individual Considered an Advance on any Recovery of a Child's Intestate (Without a Will) Share?

Sometimes gifts to children during a decedent's life are considered an advance on an intestate (when the deceased dies without a will) share under specific circumstances.  If the gift is considered an advance, then the amount a child receives in an intestate situation is reduced by the advanced amount.  T.C.A. § 31-5-101 provides that property given during the decedent's lifetime to a child should be treated as an “advance” if one or two circumstances are present:

(a) If an individual dies intestate as to all or a portion of the individual's estate, property the decedent gave during the decedent's lifetime to a child of the decedent is treated as an advancement against the child's intestate share only if:

(1) The decedent declared in a contemporaneous writing, or the child acknowledged in writing, that the gift is an advancement; or

(2) The decedent's contemporaneous writing or the child's written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent's intestate estate.

The value of the advancement is determined under T.C.A. § 31-5-101(b) at the time the child came into possession of or enjoyment of the property or the time of the decedent's death, whichever comes first.  Based on the language of the statute, it must clearly be the intent of the parties to consider the gift as an advance in order to cause it to reduce the intestate share the child receives. 

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When an Individual Dies Without a Will (Intestate) what County Handles the Probate of the Estate in Tennessee?

Analysis:  When an individual dies without a will (this is called “intestate”) then the probate court of the county where the intestate individual had usual residence at the time of death is the appropriate jurisdiction for the probate of the estate.  Specifically, T.C.A. § 30-1-102 provides as follows:

Letters of administration shall be granted by the probate court of the county where the intestate had usual residence at the time of the intestate's death, or, in case the intestate had fixed places of residence in more than one county, the probate court of either county may grant letters of administration upon the intestate's estate.

As a result when an individual dies without a will and the estate needs to be probated under Tennessee law, the appropriate jurisdiction is the county where the deceased had a usual residence.  If the individual had multiple places of residence, then the probate court of any of these counties can grant letters of administration for probate. 

What happens to a Tennessee estate if there is no will and there are no beneficiaries provided for under the intestate succession statute found in T.C.A. § 31-2-104?

Tennessee law provides that the State of Tennessee takes the entire estate if someone dies intestate (without a will) and there are no heirs under intestate succession rules found in T.C.A. § 31-2-104.  Specifically, T.C.A. § 31-2-110 provides as follows:

If there is no taker under this chapter, the intestate estate shall escheat to the state of Tennessee under the provisions of chapter 6 of this title.

This basically means the State of Tennessee will get all of your assets and possessions if you die without a will and there are no lawful heirs under Tennessee intestate succession statutes.  This is another reason why it is very important to have a will so that even if you do not have heirs under the statutes, the State of Tennessee would not acquire everything you own at your death.  This is exactly what will happen unless you take steps to leave your possession to a friend, church, non-profit organization or some other person or entity of your choice.  Very few people would intentionally leave all of their possessions and property to the State of Tennessee if they knew that is what would occur at their death.

When a child is born outside of marriage, when is the child considered a child of the father for purposes of intestate succession (when someone dies without a will)?

T.C.A. § 31-2-105(a)(2) provides the rules to determine when child is considered a child of a father when the child was born outside of marriage ("wedlock" is the term used in the statute).  Specifically, T.C.A. § 31-2-105 provides as follows:

(a) If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:

(1) An adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent; and

(2) In cases not covered by subdivision (a)(1), a person born out of wedlock is a child of the mother. That person is also a child of the father, if:

(A) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

(B) The paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof, but the paternity established under this subdivision (a)(2)(B) is ineffective to qualify the father or the father's kindred to inherit from or through the child unless the father has openly treated the child as the father's, and has not refused to support the child.

(b) In no event shall a parent be permitted to inherit through intestate succession until all child support arrearages together with interest thereon at the legal rate of interest computed from the date each payment was due have been paid in full to the parent ordered to receive support or to the parent's estate if deceased.

(c) Nothing in this section shall be construed to prevent a child from inheriting from a parent through intestate succession.

As a result there are two possible ways to determine whether a child born outside of marriage is considered a child of the “father” before or after the death of the father.  Basically the child is considered to be a child of the “father” if the parents participated in a marriage ceremony before or after the birth of the child (even when the atte...

Top Three Reasons Why You Need a Will in Tennessee.

Reason Number Three - To try to reduce the likelihood for disagreements and disputes among family members, friends and potential beneficiaries/heirs after your death.

An individual's death is an extremely stressful, emotional, and difficult time for family members and friends of the deceased.  There are often underlying relationship problems of various kinds that exist among family members and friends of the deceased.  Any pre-existing problems are often exacerbated and even made worse by the stress and difficulty of dealing with the death of a loved one. 

A properly drafted and executed will in Tennessee gives you the best opportunity to clearly lay out your intentions to avoid significant disputes over your assets and money.  Too many deaths result in family members fighting.  These disputes are not just about money but can also be about family heirlooms or other items that have no real material value, but are converted into highly valued emotional objects that family and friends focus on in their disputes.  A will is a great tool you can use to try to reduce or even eliminate these disputes because it leaves less wiggle room for family members and friends to disagree about.

Reason Number Two - To decide who will be the legal guardian for your children after your death.

A very important component of a will is that you can select who you desire to be the guardian of your children.  If you have minor children at the time you die, you can designated in your will who you desire to be the guardian for your children until they reach the age of majority (18 years of age in Tennessee).  This is one of the most important decisions you can ever make because the guardians are the individuals who will raise your children after you are gone.

Do "half-blood" relatives inherit the same as "whole blood" relatives under Tennessee law?

T.C.A. § 31-2-107 provides that "half blood" relatives inherit the same as they would if they were "whole blood" relatives.  T.C.A. § 31-2-107 provides as follows:

Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.

As a result, anytime there are “half blood” relatives in an inheritance situation, keep in mind that the fact they are “half blood” has no bearing on whether they can inherit under Tennessee law.

Under Tennessee law a parent can not inherit from an intestate child (child with no will) until all child support owed is paid.

If a parent owes child support, that parent can not inherit from their child in a situation where the child does not have a will.  T.C.A. § 31-2-105(b) provides specific requirements for any parent to inherit from a child when that parent owes child support.  This statute provides as follows:

(b) In no event shall a parent be permitted to inherit through intestate succession until all child support arrearages together with interest thereon at the legal rate of interest computed from the date each payment was due have been paid in full to the parent ordered to receive support or to the parent's estate if deceased.

As a result, a parent must pay all back child support as well as interest from the date each payment was actually due to be made.  If the parent to whom child support is owed is deceased, then the surviving parent must make payments owed to the deceased parent’s estate before the parent can inherit from the child.