It is not uncommon for people to want to understand their spouse’s
inheritance rights under Tennessee law, especially when couples are in
a second marriage or when they’re recently married. If you want
to know, “Can I disinherit my spouse?” or “Can I write
my spouse out of my will?” this is not an unusual question, especially
in the case of a second marriage or in the absence of a prenuptial agreement.
I’ll tell you right now that Tennessee’s estate laws govern
how a person’s assets are divided upon their death. If a person
does not have a valid will before he or she passes, then his or her assets
will be divided according to Tennessee’s intestate succession laws,
which are effective when someone dies without a
A Spouse’s ‘Elective Share’ Under Tennessee Law
Generally, when a person writes a will, he or she is free to bequeath their
assets to any friend, family member, or charitable organization of their
choosing. Surviving spouses, however, are protected under Tennessee law;
they cannot be disinherited or written out of a spouse’s will without
having the opportunity to claim their “elective share.”
For example, if you decide to leave your current spouse out of your will,
your surviving spouse or disinherited spouse would have
nine months from the date of your death to seek their “elective share” under
Tennessee law. In Tennessee, the amount of spouse’s “elective share”
is determined by the length of the marriage; the longer the marriage,
the greater the elective share.
Here’s how it works:
- For marriages that lasted less than three years, the elective share is
10 percent of the decedent’s estate.
- For marriages that lasted three to six years, the elective share is 20 percent.
- For marriages that lasted six to nine years, the elective share is 30 percent.
- For marriages that lasted over nine years, the elective share is 40 percent.
Spouses’ Intestacy Rights (Without a Will)
When a spouse dies without a will in Tennessee, their estate is distributed
according to the state’s intestate succession law. When a decedent
left behind a surviving husband or wife, he or she (the surviving spouse)
is the first person who is entitled to inherit from the estate.
If there are no surviving children, the spouse will receive the decedent’s
estate in its entirety. However, if there are any children, the spouse
will either receive an equal share of the estate with the children, or
the spouse will receive the greater of one-third of the decedent’s
estate. For instance, if there is only one son or daughter, the spouse
would split the estate down the middle with the child.
While a husband or wife can intentionally exclude their spouse from their
will, upon the testator’s death, the surviving spouse would have
nine (9) months from the date of their spouse’s death to claim their
“elective share” under Tennessee law.
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