The Comprehensive Guide to Probate, Trusts, Estate Planning, and Inheritance Litigation

Surviving Spouse Rights Tennessee

Surviving spouses in Tennessee have several important rights, including:

  • Exempt Property
  • Homestead Exemption
  • Elective Share
  • Intestate Share
  • Support Allowance

Learning about the widow’s rights available to a surviving spouse is one of the first steps in navigating the probate process in Tennessee.

Surviving Spouse Rights In Tennessee When There Is No Valid Will – Intestacy

When a decedent dies without a valid last will, the decedent has died intestate.  An intestate estate is controlled by Tennessee law.  The share of the surviving spouse in an intestate estate varies depending on whether or not the decedent had surviving issue.

  • Decedent had no surviving issue:  If the decedent had no surviving issue, the surviving spouse is entitled to the entire estate.
  • Decedent had surviving issue:  If the decedent had surviving issue, the surviving spouse has the right to the greater of 1/3 of the estate or child’s share.  See Tennessee Code, section 31-2-104.

To learn more about intestate succession in Tennessee, read Who Are Next Of Kin In Tennessee.

Surviving Spouse’s Right To An Elective Share

Under Tennessee law, the surviving spouse is always entitled to a percentage of the deceased spouse’s net estate.  The surviving spouse is entitled to this percentage regardless of whether the surviving spouse has been disinherited by the decedent’s will.

Amount of the Elective Share

The amount of the elective share is based on the length of the marriage.  Section 31-4-101 provides that the surviving spouse is entitled to the following percentages:

  • Marriage less than three years:  10 % of the net estate
  • Marriage between three and six years:  20% of the net estate
  • Marriage between six and nine years:  30% of the net estate
  • Marriage more than nine years: 40% of the net estate

The “net estate” is defined as follows:

The value of the net estate includes all of the decedent’s real property, notwithstanding § 31-2-103 , and personal property subject to disposition under the decedent’s will or the laws of intestate succession, reduced by the following:  secured debts to the extent that secured creditors are entitled to realize on the applicable collateral, funeral and administration expenses, and award of exempt property, homestead allowance and year’s support allowance.  The net estate does not include any assets over which the decedent held a power of appointment, whether exercised or not, unless the decedent exercises the power of appointment to direct the assets to be paid to the decedent’s personal representative for administration as part of the decedent’s probate estate.

After the elective-share amount has been determined, the amount payable to the surviving spouse shall be reduced by the value of all assets includable in the decedent’s gross estate that were transferred, or deemed transferred, to the surviving spouse or that were for the benefit of the surviving spouse, but excluding the homestead allowance, exempt property and year’s support allowance.

Deadline to File For Elective Share

The surviving spouse has the later of six months after the will is admitted to probate, or nine months from the date of decedent’s death to seek an elective share.

Surviving Spouse Allowances And Exemptions

Surviving spouses have additional rights and exemptions under Tennessee law, including:

  • Exempt personal property and a personal motor vehicle have value, collectively, not over $50,000
  • A reasonable support and maintenance allowance from the estate for maintenance during the one year period after decedent’s death.  This support allowance is based on the surviving spouse’s previous standard of living, taking into consideration the condition of decedent’s estate.
  • Homestead exemption, which is a life estate of $5,000 in the homestead.