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

Statute of Limitations to Contest a Tennessee Probated Will is 2 Years From Date of Order Probating Will

In Tennessee we have a two year statute of limitations to set aside the probate of a will.  This two year statute of limitations is calculated from the date the order is entered admitting the will to probate.  If you wait beyond this time period, you likely will not be able to contest a probated will (there are exceptions for minors or those that are adjudicated incompetent).  T.C.A. § 32-4-108 provides as follows:

All actions or proceedings to set aside the probate of any will, or petitions to certify a will for an issue of devisavit vel non, must be brought within two (2) years from entry of the order admitting the will to probate, or be forever barred, saving, however, to persons under the age of eighteen (18) years or adjudicated incompetent, at the time the cause of action accrues, the rights conferred by § 28-1-106.

What is the Statute of Limitations for a Tennessee Probate Estate to be Opened to Prosecute a Claim Against the United States Government?

Tennessee has a specific statute that provides there is no statute of limitations for opening up an estate in Tennessee in order to prosecute a claim against the United States Government.  Specifically, T.C.A. § 30-1-110(3) provides as follows:

The time within which administration may be granted shall be as follows:

(3) Prosecuting Claims against Government. A special administration may be granted for the purpose of prosecuting any claim against the government of the United States, without any limitation of time.

As a result, if an estate needs to be opened in Tennessee for the purpose of prosecuting a claim against the United States Government, this can be done at any time after the decedent’s death.  Obviously, there may still be an underlying statute of limitations for the claim against the United States Government, but there is no limitation of time for the actual opening of the estate under Tennessee law.  An example of a claim that has been brought against the United States Government to which this statute would apply would be the “Black Farmers Discrimination Litigation”.  In order to get a paid out settlement in the Black Farmers Discrimination Litigation case in Tennessee (or elsewhere) for a deceased person, an estate must be opened up in Tennessee.

Is There any Statute of Limitations for a “Life Estate” Holder to Enforce Her Rights to Property in Tennessee?

A recent Tennessee Court of Appeals decision of Alma Long v. Raymond Creekmore, No. E2012-01453-COA-R3-CV, 2013 WL 1320515 (Tenn. Ct. App. 2013) discussed whether there is a statute of limitations that is applicable to a life estate holder for a piece of real estate property in Tennessee.  In this case a dispute arose between mother (who held the life estate interest in the property) and her son.  A life estate interest is where an individual has a right to occupy and use a piece of property during their life.  It terminates upon their death.  The son received a conveyance of the property from the mother subject to her life estate interest in the property.  Various disputes arose between the mother and son over who should be able to live on and use the property.  Finally, in 2008 the mother filed suit to enforce her right to possession of the property during her life.  The son asserted a statute of limitations and laches defense to his mother’s claim (basically arguing it was too late for her to assert this claim).  The trial court dismissed the lawsuit by the mother and asserted it violated a ten year statute of limitations applicable to this type of action.

The Tennessee Court of Appeals disagreed with the trial court.  The court found that a claim possessed by a life tenant against someone who exceeded her permission on the property is not subject to a statute of limitations.  The court specifically found, that “mother merely needed to assert her right as a life tenant and obtain a declaratory judgment when Son's use of the property exceeded her permission. Such a claim is not subject to a statute of limitations because a life tenant holds the property for the duration of his or her life.  Long at 4.  The court acknowledged the son may be able to prove he has a superior right to the property pursuant to other doctrines like the doctrine of adverse possession, however, the statute of limitations does not bar this claim.  Simply, there is no statute of limitations for this type of claim according to this case. 

What is the Tennessee statute of limitations to set aside the probate of a will?

Tennessee has a two year statute of limitations for proceeding to set aside the probate of a will.  This two year statute of limitations is calculated from the date of the entry of the order admitting the will to probate.  T.C.A. § 32-4-108 provides as follows:

All actions or proceedings to set aside the probate of any will, or petitions to certify a will for an issue of devisavit vel non, must be brought within two (2) years from entry of the order admitting the will to probate, or be forever barred, saving, however, to persons under the age of eighteen (18) years or adjudicated incompetent, at the time the cause of action accrues, the rights conferred by § 28-1-106.

However, there is an extension of time for individuals that are under the age of 18 years of age or are adjudicated incompetent at the time the cause of action accrues.  This extension of the statute of limitations is found in T.C.A. § 28-1-106 which provides as follows:

If the person entitled to commence an action is, at the time the cause of action accrued, either under eighteen (18) years of age, or adjudicated incompetent, such person, or such person's representatives and privies, as the case may be, may commence the action, after legal rights are restored, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from restoration of legal rights.

As a result, individuals who are under 18 years of age or who are adjudicated incompetent at the time the cause of action accrued, have two years from the date of the “restoration of legal rights” to file suit.  The “restoration of legal rights” occurs at the age of 18 for a minor and on the date the incompetent individual is no longer incompetent.