Can a surviving spouse claim an elective share in Tennessee?

Full question:

My husband died 5 years after our marriage. He had executed a will before his death but left no properties for me in his will. Can I claim some of my husband’s property despite his will?

• Category: Wills and Estates
• Subcategory: Elective Share of Estate
• Date: 04/07/2025
• State: Tennessee

Answer:

Yes, you are entitled to an elective share of our deceased husband’s property. Your share is calculated based on the length of the marriage. Since both of you were married for 5 years, you are entitled to 20% of his property. However, to elect to take the elective share in our deceased husband’s property you should file a petition for the elective share in the court within 9 months after the date of your husband.

You can have a look at the relevant law in this regard below:

Tenn. Code Ann. § 31-4-101
Right to elective share 

  (a)  (1) 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
      .....................
   (2) 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.
(b) 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.
(c) 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.
(d) 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.
 
Tenn. Code Ann. § 31-4-102
Petitions; time; hearings
 
(a)(1) The surviving spouse may elect to take the spouse's elective share in decedent's property by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within nine (9) months after the date of death.
(2) When the title of the surviving spouse to property devised or bequeathed by the will is involved in litigation pending so that an election to take the elective share cannot be advisedly made, the survivor shall have an additional year from the date of the probate of the will within which to elect; provided, that the court may upon a proper showing further extend the time to meet the exigency of litigation, not concluded, and, that application for allowance of additional time, in either case, be made to the court, for record of its action thereon.
(b) The court shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the decedent's estate whose interests will be adversely affected by the taking of the elective share.
(c) The surviving spouse may withdraw a demand for an elective share at any time before entry of a final determination by the court.
(d) After notice and hearing, the court shall determine the elective share and shall order its distribution and/or vesting to the surviving spouse or the spouse's personal representative. If it appears that a fund or property has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession of the fund or property, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than the person would have been if relief had been secured against all persons subject to contribution.
(e) The order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.

Tenn. Code Ann. § 31-4-105  
Death of surviving spouse
 
In the event the surviving spouse dies before the time for electing the elective share expires, the personal representative of the decedent's surviving spouse may, in like manner and every respect, make the election on behalf of the deceased spouse. In like manner, the personal representative may withdraw a demand for an elective share at any time before entry of a final determination by the court.