Surviving Spouses and Their Elective Shares: What You Should Know
Posted by Martin Heller Potempa & Sheppard, PLLC on September 27, 2019
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No doubt that tomorrow is promised to no one. For that reason, many people put off writing a will. Even with a will, it’s entirely possible for someone to hold up distribution of an estate. So, what happens with surviving spouses? And, what exactly is an elective share?
Like many other states, Tennessee law recognizes the elective share of a surviving spouse to a decedent’s estate. T.C.A. 31-4-101 specifically addresses this issue. However, it’s first critical to understand the meaning of an elective share.
For starters, there’s the reason the concept of why an elective share even exists. Its purpose is to ensure that surviving spouses don’t wind up disinherited. Other family members might attempt to do this if the decedent died intestate – or without a will.
On the other hand, a husband or wife could die and decide to either totally disinherit a spouse – or leave a nominal fraction of the estate. Depending on the length of the couple’s marriage, this could have enormous consequences.
That said, the length of a marriage matter when it comes to a surviving spouse’s rights to his or her elective share of the decedent’s estate. The percentages are broken down as follows:
Length of Marriage
Percentage of Net Estate
Less than three years
Three years, but less than six years
Six years, but less than nine years
Nine years or more
Notably, the years do not have to be consecutive. In cases where couples have divorced and remarried, the years are combined.
Surviving Spouses and Elective Share: The Process
For some, knowledge of a surviving spouse’s right to an elective share most likely represents welcome news. In the meantime, it’s critical to understand the guidelines for making the election.
Time plays an important factor when it comes to the elective share of a surviving spouse. According to T.C.A. § 31-4-102, the surviving spouse needs to notify the court about the proposed election. This must be done within nine months of the decedent’s death.
The estate’s personal representative must also receive notification that a surviving spouse plans on taking an elective share. For example, this might mean notifying someone other than the surviving spouse named as the decedent’s executor.
Time may be extended as far as the elective share if there is litigation pending regarding title to property. The surviving spouse should meet with an experienced estate attorney. The date extends one year from the probate of the will. Once again, an experienced probate litigation lawyer can provide answers to questions regarding a surviving spouse’s right to an elective share.