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 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...

How are heirs that are born after decedent's death treated under Tennessee law (when they are conceived before death or after death)?

Determining what happens to heirs that are conceived before death and born after death is relatively easy because the Tennessee legislature has provided a specific statute on this issue.  The question of what happens under Tennessee law to posthumously born children where the conception is accomplished post-death by in vitro fertilization or artificial insemination is much more difficult because the Tennessee legislature has not provided us with guidance to date.

A.         Conception before death – born after death

T.C.A. § 31-2-108 provides that "after born heirs" (those that are conceived before the decedent's death but born after the decedent's death) inherit just like they would if they would have been born during the lifetime of the decedent.  T.C.A. § 31-2-108 provides as follows:

Relatives of the decedent conceived before the decedent's death but born thereafter inherit as if they had been born in the lifetime of the decedent.

As a result, as long as the relative (this could be a child or a collateral relative that somehow inherits from the decedent) is conceived before the decedent's death, then they are considered to have been born during the life of the decedent. 

Obviously, this can cause interesting questions about the date of conception of the baby for purposes of determining whether they can inherit from the deceased individual.  If the relative was conceived after the decedent's death then they are not entitled to be considered to have been born during the lifetime of the decedent.  This could, in some circumstances, cause them to not inherit from the deceased.  The statute does not define or address how to resolve this issue if the date of conception is close enough to death that the parties and court cannot determine which came first, the death or the conception.

Is an adopted child considered the child of a deceased person when that individual dies without a will (intestate) under Tennessee law?

T.C.A. § 31-2-105 discusses an adopted child’s legal status under Tennessee law when their adopted parent dies without a will (intestate).  Specifically, subsection (a) 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;

As a result, under Tennessee law an adopted child is considered to be the child of an adopting parent, not the natural parent.  One exception is when the child is adopted by a spouse of a natural parent, then the child is still considered to be the child of that specific natural parent (not the other natural parent).

Additionally, under T.C.A. § 31-1-101(6) an adopted child is considered to be "issue" from the deceased just like a natural born child.  This is the statute that defines the term “issue” which is used throughout the intestate succession statutes and it states 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;

The definition of “child” under the statute also identifies an adopted child as having an equal st...

Tennessee law requires an individual to survive a decedent by 120 hours in order to inherit from them under a will or intestate succession.

Tennessee law provides in T.C.A. § 31-3-120 that an individual must survive a decedent by 120 hours in order to recover from their estate.  Specifically, recovery is not allowed if there is a failure to survive by 120 hours under the theories of homestead allowance, years support allowance, exempt property, elective share and intestate succession.  As a result, when two individuals experience simultaneous death or die within a 120 hour period, the individual who failed to survive the decedent by 120 hours is considered to have predeceased the decedent for purposes of intestate succession.  T.C.A. § 31-3-120(a) provides as follows:

(a) An individual who fails to survive the decedent by one hundred twenty (120) hours is deemed to have predeceased the decedent for purposes of the homestead allowance, year's support allowance, exempt property, elective share and intestate succession, and the decedent's heirs are determined accordingly.

Additionally, even if there is a will in place, an individual must survive the testator by 120 hours otherwise they are deemed to have predeceased the testator and will not inherit under the will.  This is true unless the will has specific explicit language dealing with simultaneous deaths or deaths in a common disaster and provides a specific stated period of time the person must survive to take under the will.  Specifically, T.C.A. § 31-3-120(b) provides as follows:

(b) A devisee who fails to survive the testator by one hundred twenty (120) hours is deemed to have predeceased the testator, unless the will of the decedent contains language dealing explicitly with simultaneous deaths or deaths in a common disaster or requiring that the devisee survive by a stated period of time in order to take under the will.

Additionally, this statute provides that it must be proved by "clear and convincing evidence" that an individual survived the decedent by 120 hours.  This is a high standard under Tennessee law.  Specifically, T.C.A. § 31-3-120(c)...

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.

In Tennessee when an individual dies without a will (intestate) and there is no surviving spouse, how is the property distributed?

If an individual dies without a will (intestate) in Tennessee, T.C.A. § 31-2-104 governs how the estate of the deceased is split up among the heirs.  The Tennessee legislature has set up a statutory structure for the distribution of an estate for someone who dies without a will.

T.C.A. § 31-2-104(b) provides as follows:

(b) The part of the intestate estate not passing to the surviving spouse under subsection (a) or the entire intestate estate if there is no surviving spouse, passes as follows:

(1) To the issue of the decedent; if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation;

(2) If there is no surviving issue, to the decedent's parent or parents equally;

(3) If there is no surviving issue or parent, to the brothers and sisters and the issue of each deceased brother and sister by representation; if there is no surviving brother or sister, the issue of brothers and sisters take by representation; or

(4) If there is no surviving issue, parent, or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there is no surviving grandparent or issue of grandparent on either the paternal or maternal side, the entire estate passes to the relatives on the other side in the same manner as the half.

T.C.A. § 31-2-104(a) (the preceding section in this statute) discusses how property is distributed when there is a surviving spouse.  Subsection (b) deals with the situation where there is no surviving spouse.  The order of priority based on the above statute (when there is no surviving spouse) is basically 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...