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.