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If an individual dies without a will (intestate) in Tennessee and they leave a surviving spouse and children, what happens to the decedent’s property?

Posted on Feb 25 2013 10:28AM by Attorney, Jason A. Lee

When an individual dies without a will (intestate) Tennessee statutes govern the distribution of their estate including all of their assets and property.  T.C.A. § 31-2-104 provides that if there is a surviving spouse then the distribution is as follows:

 

(a) The intestate share of the surviving spouse is:

(1) If there is no surviving issue of the decedent, the entire intestate estate; or

(2) If there are surviving issue of the decedent, either one-third (1/3) or a child's share of the entire intestate estate, whichever is greater.

 

Surviving Spouse only (with no surviving “issue”):

 

As a result, if there is a surviving spouse with no “issue” from the decedent then the surviving spouse takes the entire estate.  The next question is, what does it mean to have surviving “issue” of the decedent?  Issue is defined in T.C.A. § 31-1-101 as follows:

 

(6) “Issue” of a person means all the person's lineal descendants, adopted as well as natural born, of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in this title;

 

This includes children but it also includes grandchildren (and also others but children and grandchildren are the most common examples of “issue”). 

 

Surviving Spouse with surviving “issue”:

 

If the decedent had surviving “issue” then the surviving spouse gets a one-third share of the estate or a child's share of the estate, whichever is greater.  This means that if there is a surviving spouse and one child of the decedent then each gets one-half of the estate.  If there is a surviving spouse and two children then the surviving spouse gets one-third of the estate and the two children each get one-third of the estate.  If there is a surviving spouse and three children then the surviving spouse gets one-third of the estate and the children split the remaining two thirds of the estate.  This math holds true no matter how many additional children there are.

 

It is important to remember, however, that the surviving spouse may have other options to consider if the decedent died without a will.  This includes homestead, elective share, years support, and other potential benefits under Tennessee law that need to be carefully considered when determining what the spouse is entitled to in an intestate estate situation.  This is where a Tennessee probate attorney can help with advising the surviving spouse of the various options under Tennessee law when their spouse dies without a will.


TAGS: Intestate, Intestate Succession, Elective Share, Homestead, Surviving Spouse, Year's Support
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Author

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
611 Commerce Street, Suite 2603
Nashville, TN 37203
Phone: 615-540-1004
E-mail: jlee@burrowlee.com

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