“I was in complete shock,” said Karen after she learned that her late husband had cut her out of his will. “I know we had rocky moments during our marriage. Those times were tough. And I know he loved his kids. But it really hurts that he did not leave me anything. We were married for 23 years, but everything he had went to his children.”
Ten years earlier, Karen and Richard had met with an estate planning lawyer to prepare their wills. At that time, everything went well. They designed a plan that left everything to the surviving spouse and then to their respective children. As the couple grew older, Karen assumed that their original estate plan was still in place. She did not realize that Richard had consulted a different Clarksville estate planning attorney to revise his plan two years before his death. His revisions completely cut Karen out of his will and left everything he had to his children.
Karen was left with nothing but questions: How could my husband cut me out? What can I do? Is there a way I can challenge the will? Do I have any rights after 23 years of marriage?
Sadly, the problem Karen faces is a common one. Spouses will cut each other out of their will for various reasons, including:
- Estrangement
- Greater loyalty and attachment to their children than to their spouse
- Belief that the surviving spouse already has substantial assets and does not need anything
- A child or relative has convinced them to cut their spouse out
Fortunately, Tennessee provides certain protections for surviving spouses.
The elective share allows a spouse to “elect” against the will of the deceased spouse. The surviving spouse can claim up to 40% of the value of the estate, depending on how many years the couple has been married. Additionally, the surviving spouse can apply for a year’s support allowance. This allowance allows the surviving spouse to receive monetary support from the deceased spouse’s estate for a period of one year after the spouse’s death. Finally, the surviving spouse has a right to claim certain personal property and to take ownership of a vehicle.
Surviving Spouse’s Elective Share
Following the death of a spouse, the surviving spouse is entitled to an elective share of the deceased spouse’s estate. An elective share is a portion of an estate that a surviving spouse petitions the Court to receive. A surviving spouse is entitled to request an elective share of the decedent’s estate if
- The decedent died without a will
or if
- The decedent left a will, but the surviving spouse chooses not to receive the assets bequeathed int the will and elects against it.
How much can the surviving spouse receive from the estate? Well, that depends on the length of the marriage. Here is the breakdown:
- Less than 3 years of marriage 10%
- Over 3 years but less than 6 years 20%
- Over 6 years but less than 9 years 30%
- Over 9 years of marriage 40%
The surviving spouse must take certain actions to ensure that they will receive their elective share. The surviving spouse must elect against the will by:
- Filing a Petition with the Court to elect against the will
- Serving the executor or personal representative of the estate with the Petition, and
- Filing this Petition within 9 months of the decedent’s death
Understand that the surviving spouse must take these actions to secure their elective share. If the deceased husband or wife died on January 1, and the surviving spouse files for an elective share in November – 11 months after death – the surviving spouse would not receive the elective share. Remember: The Petition requesting the elective share must be timely filed.
What happens if the surviving spouse was only left a small amount of the estate? If that is the case, the survivor can still elect against the will. The spouse is not required to take a small amount of assets if that’s all that the deceased spouse left him/her. The surviving spouse can still apply for their elective share even though they were not cut out of the will.
Year’s Support Allowance
Tennessee law additionally provides that a surviving spouse who files for an elective share may also request one year’s support of monetary allowance from the estate of the deceased spouse. The Court grants the surviving spouse a reasonable amount of money from the deceased’s estate to provide immediate temporary support. To determine the “reasonable” allowance, the Court takes into consideration:
- The surviving spouse and deceased spouse’s previous standard of living;
- The condition of the deceased spouse’s estate; and
- Any assets the spouse already receives.
The year’s support allowance allows the surviving spouse time to adjust to a new financial situation and to seek employment or educational opportunities if necessary.
Because the Court mandates the year’s support allowance with the intent to provide financial relief for the surviving spouse, the allowance cannot be seized or claimed by collectors for any of the deceased’s outstanding debts. However, if the decedent has outstanding debts that exceed the value of his estate, the spouse is not eligible to receive any support.
Rights to Specific Property
The surviving spouse additionally is entitled to receive personal property from the estate and a vehicle used by the family.
Sometimes the surviving spouse wants both personal property and a monetary allowance. In this case, he/she may take any personal property from the estate, and then the value of that property is subtracted from the surviving spouse’s monetary allowance.
Be aware: The value of the personal property the surviving spouse takes cannot exceed the amount of the spouse’s monetary allowance and cannot exceed $50,000.00.
Who qualifies as a “surviving spouse” under Tennessee Code?
The State of Tennessee has provisions that restrict who qualifies as a “surviving spouse”. Tennessee law defines “surviving spouse” as the decedent’s legal husband or wife at the time of the decedent’s death. This includes a spouse who was separated but still legally married at the time of the decedent’s death. To receive support, the spouse also must survive the decedent by at least five (5) days.
Who does not qualify as a “surviving spouse” under Tennessee Code?
In Tennessee, a surviving spouse does not include the following:
- divorced spouses
- spouses from an annulled marriage
- spouses from a common law marriage
Understand that while some states, such as Colorado, Florida, California, and Texas, legally recognize common law marriages as terms for spousal support, Tennessee does not. A common law marriage in Tennessee does not have any legal standing for a spouse to request an elective share or a year’s support.
Additionally, if a spouse signed a prenuptial agreement or post-nuptial agreement specifically relinquishing these outlined spousal rights to the decedent’s estate, the spouse cannot file for an elective share.
The State of Tennessee: Rights of a Surviving Spouse
If your spouse chooses to cut you out of their will, there are protections for you. A surviving spouse is entitled to elect against their deceased spouse’s will and receive a certain portion of the decedent’s estate. But be careful, the spouse must file the petition within 9 months to be eligible for relief. Additionally, the surviving spouse has a right to right to receive a year’s support allowance, and a right to obtain personal property. Tennessee law does provide unique protections and remedies for spouses who have been cut out of their husband or wife’s will.