Tennessee § 31-4-101 - Right to elective share.

§ 31-4-101. Right to elective share.

The surviving spouse of an intestate decedent who elects against taking an intestate share, or a surviving spouse who elects against a decedent's will, has a right of election, unless limited by subsection (c), to take an elective-share amount equal to the value of the decedent's net estate as defined in subsection (b), determined by the length of time the surviving spouse and the decedent were married to each other, in accordance with the following schedule: If the decedent and the surviving spouse were married to each other: The elective-share percentage 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 For purposes of determining the total number of years to be applied to the computation provided in subdivision (a)(1), the number of years persons are married to the same person shall be combined. The years do not have to be consecutive, but may be separated by divorce. All years married shall be counted toward the total number of years for purposes of this section. 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 in accordance with subsections (a) and (b), the amount payable to the surviving spouse by the estate 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. For purposes of this subsection (c), the decedent's gross estate shall be determined by the court in the same manner as for inheritance tax purposes pursuant to title 67, chapter 8, part 3, except that the value of any life estate or trust for the lifetime benefit of the surviving spouse shall be actuarially determined. The elective-share amount payable to the surviving spouse is exempt from the claims of unsecured creditors of the decedent's estate and, notwithstanding § 30-2-614(b) or (e), shall not be allocated to any United States or any state estate, inheritance or other death transfer tax if the elective share amount qualifies for and is used as a marital deduction in determining the decedent's death tax liability under any applicable estate, inheritance or other death transfer tax statute. Acts 1977, ch. 25, § 4; T.C.A., § 31-601; Acts 1985, ch. 140, § 28; 1997, ch. 426, § 17; 2001, ch. 400, § 3; 2004, ch. 866, § 2; 2007, ch. 13, §§ 1-3. Compiler's Notes. Acts 1997, ch. 426, § 26 provided that the amendments to this section by that act shall apply to all estates of decedents dying on or after January 1, 1998 and to all wills, other documents and proceedings related thereto. Acts 2003, ch. 219, § 1 provided that, notwithstanding any other provision of law to the contrary, the spouse of an intestate decedent may elect to take the intestate share provided pursuant to § 31-2-104(a) , or may elect to take an elective-share amount to be determined in accordance with the percentages set out in this section. Cross-References. Fraudulent conveyance to defeat share, § 31-1-105 . Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 31, 297, 402, 647, 650, 810, 812, 816. Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-1108. Tennessee Jurisprudence, 8 Tenn. Juris., Curtesy, § 2; 9 Tenn. Juris., Descent and Distribution, §§ 6, 12; 25 Tenn. Juris., Wills, § 166. Law Reviews. Avoiding Spousal Claims in Tennessee (Steven A. Goodman), 24 No. 4, Tenn. B.J. 24 (1988). Conveyances Affecting the Surviving Spouse's Elective Share: Tennessee's Past and a Look to the Future, 57 Tenn. L. Rev. 677 (1990). Descent and Distribution — Fraudulent Conveyances — Intent to Deprive Surviving Spouse of His or Her Distributive or Elective Share, 50 Tenn. L. Rev. 551 (1983). Intestate Succession in Tennessee (Douglas P. Quay), 8 Mem. St. U.L. Rev. 63 (1978). Protection Against Spousal Disinheritance: A Critical Analysis of Tennessee's New Forced Share System, 28 U. Mem. L. Rev. 561 (1998). Some Whys and Wherefores of Will-Drafting — Revised (Robert L. McMurray), 15 No. 2 Tenn. B.J. 2 (1979). Survey of Tennessee Property Law, II. Estates in General (Toxey H. Sewell), 46 Tenn. L. Rev. 161 (1979). Survey of Tennessee Property Law, V. Trusts (Beverly A. Rowlett), 48 Tenn. L. Rev. 95 (1981). TennCare: Expanded Estate Recovery - Recover at ALL Cost, 45 U. Mem. L. Rev. 711 (2015). You Can't Take It with You, and Maybe You Can't Even Give It Away: The Case of Elizabeth Baldwin Rice (J. Thomas Oldham), 41 U. Mem. L. Rev. 95 (2010).