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Sometimes gifts to children during a
decedent's life are considered an advance on an intestate (when the deceased
dies without a will) share under specific circumstances. If the gift is considered an advance, then
the amount a child receives in an intestate situation is reduced by the
advanced amount. T.C.A. § 31-5-101 provides that
property given during the decedent's lifetime to a child should be treated as
an “advance” if one or two circumstances are present:
(a) If an individual dies intestate as to all or a portion of the
individual's estate, property the decedent gave during the decedent's lifetime
to a child of the decedent is treated as an advancement against the child's
intestate share only if:
(1) The decedent declared in a contemporaneous writing, or the child
acknowledged in writing, that the gift is an advancement; or
(2) The decedent's contemporaneous writing or the child's written
acknowledgment otherwise indicates that the gift is to be taken into account in
computing the division and distribution of the decedent's intestate estate.
The value of the advancement is determined
under T.C.A. §
31-5-101(b)
at the time the child came into possession of or enjoyment of the property or
the time of the decedent's death, whichever comes first. Based on the language of the statute, it must
clearly be the intent of the parties to consider the gift as an advance in
order to cause it to reduce the intestate share the child receives.
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