What is the Elective Share for a Surviving Spouse under Tennessee Law?

What if your spouse has passed away and you were left out of their Last Will and Testament?

Maybe the Will was prepared before you were married, or before you even met. Maybe they intentionally attempted to disinherit you. Do you have any options as a surviving spouse? In Tennessee, the answer is yes. Tennessee law protects the surviving spouse from being left out in the cold.

But it is important to secure those rights according to the timelines and procedures laid out in the law.

T.C.A. § 31-4-101(a) establishes what is known as an “elective share.” It entitles a surviving spouse to receive a share of their deceased spouse’s estate, instead of receiving whatever the Will provides. Regardless of whether the deceased person simply failed to update their Will to include their spouse, or intentionally left out their husband or wife, that surviving spouse may choose to receive an “elective share.”

The percentage of the estate a surviving spouse is entitled to depends on how long the decedent and the surviving spouse were married. The statute lays out the details:

If the decedent and the
surviving spouse were married: . . . . . . The elective share % is:

Less than 3 years . . . . . . . . . . . . . . . . . . . . . 10% of the net estate

3 years but less than 6 years . . . . . . . . . . . . 20% of the net estate

6 years but less than 9 years . . . . . . . . . . . . 30% of the net estate

9 years or more . . . . . . . . . . . . . . . . . . . . . .  40% of the net estate

So, if your spouse of 20 years, for example, dies and has left you out of the will, whatever the reason, you may elect to take 40% of the net estate as the surviving spouse. Even if you have been married for a short time, you are entitled to at least 10% of the net estate.

The elective share is also available to a survivor whose deceased spouse died without a will. The laws of intestacy (dying without a will) in Tennessee may leave a spouse with a smaller percentage of the estate than they could receive under the elective share law. In that case, a surviving spouse may want to claim an elective share.

The rationale behind the elective share is that it is in the public’s best interest to protect surviving spouses. The elective share is designed to keep a surviving spouse from being impoverished by an inadequate inheritance.

But if you wish to claim an elective share, you must take action.

  • The elective share must be claimed in a timely fashion. In Tennessee, an elective share must be properly claimed within 9 months after the date of death.
  • The surviving spouse must initiate legal proceedings to claim an elective share.
  • A petition must be filed with the court, and served on the estate’s personal representative, if there is one.

After notice and a hearing, the court determines the appropriate elective share and orders its distribution to the surviving spouse. If property has already been distributed, the recipients may be required to contribute a pro rata share to satisfy the surviving spouse’s elective share.

Tennessee law also provides surviving spouses with a number of additional important rights and benefits. Please contact us today online or by calling 800.705.2121 to discuss your legal options.

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