What is the “elective share” in probate?

On Behalf of | Jul 5, 2019 | Probate |

Like other states, Tennessee has a provision in its laws for what is commonly called the elective share. The elective share protects the surviving spouse from being left penniless after the other spouse’s death`. Presumably, this is because, as a society, we assume that spouses want to and even should provide for their significant others.

Because of the elective share, it is difficult for a Tennessee resident to cut a surviving spouse out of his or her will, simply because the spouse can then use Tennessee’s elective share laws to claim a portion of the estate during the probate process.

How much of an elective share the spouse may claim depends on how long the marriage between the deceased person and the spouse lasted. For example, after a marriage of less than 3 years, a surviving spouse can only claim 10% of the estate.

On the other hand, for marriages that last over 9 years, a surviving spouse may claim 40% of the net estate, that is, the value of the estate less certain debts and expenses.

It is important to note that the elective share only applies to property passed on via a will or passed on as part of Tennessee’s intestate process when a person dies without a will. It does not apply, for instance, to property which passes through a trust.

Moreover, the elective share may get reduced by any funds a surviving spouse receives outside of probate, such as through a life insurance policy or jointly held real estate.

There may actually be some reasons why a person would want to not provide for his or her spouse under a will, particularly in this day when blended families and multiple marriages are more common. Careful estate planning can prevent issues with the elective share, but sometimes, it may have to be dealt with through the legal probate process.


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