Sometimes there are situations in which a spouse dies before a last will and testament has been created. Other times, a husband and wife marry and one of them forgets to update their will or living trust. One spouse dies and unintentionally leaves the survivor nothing. That type of situation is true many times in second marriages where spouses fail to update their wills from previous marriages. The surviving spouse wonders what happens next: does he or she inherit anything?
In Tennessee, the law protects the surviving spouse to a certain extent. Regardless of what estate plan you have, the spouse is entitled to a certain percentage of the decedent spouse’s estate. This is what’s often referred to as an elective share. Below is an overview of how it works in Tennessee.
How Elective Shares Help Surviving Spouses
Under to Tennessee law, a surviving spouse has the right to elect to receive an amount from the decedent’s assets rather than accept what was left in the decedent’s will. Even if no will was ever created, a spouse can still claim a certain amount of the estate.
So, regardless of whether your spouse died with a will or without one, Tennessee law protects you. This elective share even applies in cases when the spouse may have attempted to disinherit a spouse. In those cases, the spouse is still allowed by law a certain portion of the decedent spouse’s estate.
What Share can a Surviving Spouse Elect to Receive?
A surviving spouse can elect to take a share from the decedent’s spouse’s estate but only in accordance with the law. The law allows the elected share to be an amount equal to the value of the decedent’s net estate … determined by the length of time the surviving spouse and the decedent were married to each other, in accordance with the following schedule:
| Duration of Marriage | Percentage of the Net Estate |
| less than 3 years | the elective-share is 10% |
| 3 years but less than 6 years | the elective-share is 20% |
| 6 years but less than 9 years | the elective-share is 30% |
| 9 years or more | the elective-share is 40% |
When determining the number of years married, the years do not have to be consecutive. Thus, if a couple married, divorced, and then remarried, the qualifying duration of marriage will be the combined years of the two marriages.
What Constitutes the Decedent Spouse’s Net Estate for Purposes of the Elective Share?
To better understand what the amount of the elective share would be it is important to know what the net estate involves. According to the statute, the net estate includes the deceased’s real and personal property subject to the latter’s 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 expenses;
- estate administration expenses;
- an award of exempt property;
- a homestead allowance; and
- a year’s support allowance.
Once the net estate value is determined, and then the elective share is determined, there’s one more step: The elective share must be reduced by assets received by the surviving spouse and included in the decedent’s estate. Such assets include things like insurance proceeds and retirement benefits.
A Tennessee Elective-Share Example
An example would best help you understand what an elective share could look like. Imagine a surviving spouse was married to the decedent for 7 years. The spouse’s real estate was valued at $300,000 and personal property was valued at $50,000 for a total of $350,000, minus the following:
- Mortgage loans secured by the real estate ($100,000)
- Funeral expenses ($5,000)
- Estate administration expenses ($5,000)
- Exempt property ($5,000)
- Homestead exemption ($5,000)
- A year’s support ($30,000).
The net estate value is $200,000. The surviving spouse’s elective share is 30% of $200,000 for a total of $60,000 reduced by any assets the surviving spouse received. For example, if the spouse receive $20,000 from an account payable on death, then the final value of the elective-share would be $40,000.
The Key Takeaway: Tennessee Elective Shares
You have options in Tennessee if your spouse dies – either with or without a will. That said, your best option for making sure you – as a spouse – are covered when the other spouse dies is comprehensive estate planning. Nothing beats that, not even an elective share.