Focus on the Law: Surviving Spouse

By Sharon Frankenberg,
Attorney at Law

As a general rule, a person writing a will is free to dispose of his or her property as he or she sees fit.  One exception to this rule is found in Tennessee law regarding a surviving spouse.  Absent some valid agreement between the parties, a surviving spouse may not be completely disinherited.  There are two main justifications for this.  First, there is the moral duty of spouses to mutually support each other.  This can be construed to include limited support of the survivor even after death.  Second, there is the potential unfairness of depriving a surviving spouse of his or her contribution to the acquisition of the dead spouse’s assets.  In this vein, one spouse may not give away the entire estate prior to his or her death to avoid supporting the surviving spouse.  Such gifts could be found to be invalid by the court.

The relevant chapter here is found in the Tennessee Code Annotated Title 31 Decent and Distribution, Chapter 4 Elective Share of Surviving Spouse.  A surviving spouse can accept what was provided for him or her in the will or choose (“elect”) to take a share under this statute.  Even if there is no will, the surviving spouse is entitled to take an elective-share in an amount depending upon the length of the marriage.  If the deceased and the surviving spouse were married to each other for less than 3 years, the elective-share percentage is 10% of the net estate.  Three years but less than 6 years is an elective-share of 20%.   Six years but less than 9 years is an elective-share of 30% and 9 years or more is an elective-share of 40%.  The marriage length includes the total number of years the deceased was married to the surviving spouse combined.  The number of years need not be consecutive and may be separated by divorce.   Under Tennessee law, in order to elect against the will the surviving spouse must refuse any specific bequest in order to elect the statutory minimum to which he or she would be entitled.  This must be done within nine months from the date of the spouse’s death.

Real property owned by a couple and titled to both as husband and wife is referred to as being held as “tenants by the entirety.”  This means that neither can sell or borrow against that real property without the written consent of the other.  Upon death of one spouse and subject to certain kinds of liens and debts, the real property automatically becomes the property of the surviving spouse.   If your deed is not held as tenants by the entirety, you could receive the assignment of a homestead interest when a court orders that your marital home be assigned to you as surviving spouse.  This is pursuant to T.C.A. Sect. 30-2-201.  Also as surviving spouse is entitled to a year’s support allowance under T.C.A. Sect. 30-2-102 which provides a reasonable allowance for one year after the spouse’s death based upon his or her previous standard of living.

Obviously, the column does not cover every possible situation and your individual circumstances are unique.   You should always consult an experienced attorney for legal advice regarding your options.  My office number in Knoxville is (865)539-2100.

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