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In Tennessee when is a surviving spouse required to make an election to receive an elective share against the estate?

Posted on Jun 18 2013 10:39PM by Attorney, Jason A. Lee

A surviving spouse can choose to receive an elective share (see prior post describing the details of an elective share under Tennessee law) of the decedent's property by filing a notice with the court and delivering the notice to the personal representative.  The surviving spouse must file a petition for an elective share within nine months after the date of the death.  T.C.A. § 31-4-102(a)(1) provides as follows:

 

(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.

 

Additionally, an extension of this time limit is provided in the statute if there is litigation pending about the title of the surviving spouse to property devised or bequeathed by the will such that an elective share determination could not be made with sufficient information.  If this type of litigation exists then the surviving spouse has an additional year from the date of the probate of the will within which to elect.  Additionally, the court can extend that date further due to the litigation if requested.  T.C.A. § 31-4-102(a)(2) provides as follows:

 

(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.

 

The surviving spouse may also withdraw a demand for an elective share at any time for the entry of a final determination by the court under T.C.A. § 31-4-102(c).  Obviously factual circumstances can change as the estate moves through the Tennessee probate process.  This portion of the statute provides:

 

(c) The surviving spouse may withdraw a demand for an elective share at any time before entry of a final determination by the court.

 

It is very important for a surviving spouse to carefully consider his or her options for an elective share.  This can be a complicated process as there are many other rights the spouse needs to take into consideration.   A Tennessee probate attorney can assist in this process in advising a client about the appropriate steps to take that allow for the best outcome.

 

Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.

TAGS: Elective Share, Surviving Spouse, Notice Requirements, Tennessee Probate Law
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Jason A. Lee is a Member of Burrow Lee, PLLC. Contact Jason at 615-540-1004 or jlee@burrowlee.com for an initial consultation on wills estate planning and probate issues.

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Tennessee Wills and Estates Blog
Jason A. Lee, Member of Burrow Lee, PLLC
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Nashville, TN 37203
Phone: 615-540-1004
E-mail: jlee@burrowlee.com

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