Persons Born Out of Wedlock Must Prove by Clear and Convincing Evidence that Deceased was Father to Inherit Under Intestate Succession in Tennessee

A recent Tennessee Court of Appeals decision, In re: Estate of Ole Irene Tucker, 2015 WL 7068134 (Tenn. Ct. App. 2015), discussed how a person qualifies as a person born out of wedlock for purposes of inheriting from a deceased individual in an intestate situation (a situation without a will).  In this case, an individual claimed to be a grandchild of a deceased individual.  A dispute arose as to whether this individual was actually the child of her purported father (who was the son of the deceased).  The question before the Court was whether this individual had standing to make a claim under the Tennessee intestate succession laws against the estate.  The trial court issued an order finding that this individual lacked standing and could not inherit under Tennessee law because she was not considered a person born out of wedlock under T.C.A. § 31-2-105. 

On appeal, the Tennessee Court of Appeals discussed the statute that governs this issue, T.C.A. § 31-2-105.  This statute provides as follows:

(a) If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:

(1) An adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent; and

(2) In cases not covered by subdivision (a)(1), a person born out of wedlock is a child of the mother. That person is also a child of the father, if:

(A) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

(B) The paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof, but the paternity established under this subdivision (a)(2)(B) is ineffective to qualify the father or the father's kindred to inherit from or through the child unless the father has openly treated the child as the father's, and has not refused to support the child.

(b) In no event shall a parent be permitted to inherit through intestate succession until all child support arrearages together with interest thereon at the legal rate of interest computed from the date each payment was due have been paid in full to the paren...

Statute of Limitations to Contest a Tennessee Probated Will is 2 Years From Date of Order Probating Will

In Tennessee we have a two year statute of limitations to set aside the probate of a will.  This two year statute of limitations is calculated from the date the order is entered admitting the will to probate.  If you wait beyond this time period, you likely will not be able to contest a probated will (there are exceptions for minors or those that are adjudicated incompetent).  T.C.A. § 32-4-108 provides as follows:

All actions or proceedings to set aside the probate of any will, or petitions to certify a will for an issue of devisavit vel non, must be brought within two (2) years from entry of the order admitting the will to probate, or be forever barred, saving, however, to persons under the age of eighteen (18) years or adjudicated incompetent, at the time the cause of action accrues, the rights conferred by § 28-1-106.

What is Exempt Property in a Tennessee Estate for a Surviving Spouse or Minor Children?

Analysis:  T.C.A. § 30-2-101 provides that a surviving spouse of a person who died without a will (intestate decedent) or a surviving spouse who elects against their spouse’s will (this is called an elective share under T.C.A. § 31-4-101) is entitled to receive certain exempt property from the estate.  Specifically, the surviving spouse can receive exempt property having a fair market value that does not exceed $50,000.00 as stated in T.C.A. § 30-2-101 as follows:

(a) The surviving spouse of an intestate decedent, or a spouse who elects against a decedent's will, is entitled to receive from the decedent's estate the following exempt property having a fair-market value (in excess of any indebtedness and other amounts secured by any security interests in the property) that does not exceed fifty thousand dollars ($50,000):

(1) Tangible personal property normally located in, or used in or about, the principal residence of the decedent and not used primarily in a trade or business or for investment purposes, and

(2) A motor vehicle or vehicles not used primarily in a trade or business. If there is no surviving spouse, the decedent's unmarried minor children are entitled as tenants in common only to exempt property as described in subdivision (a)(1). Rights to this exempt property are in addition to any benefit or share passing to the surviving spouse or unmarried minor children by intestate succession, elective share, homestead or year's support allowance.

This exempt property is in addition to other benefits (including the elective share, homestead or year’s support allowance) the surviving spouse or minor child would receive as specifically stated in subsection (a)(2).  If there is no surviving spouse then unmarried minor children are entitled to own the exempt property as tenants in common with each other.  Keep in mind that exempt property doe...

Can a Guardian or Conservator Sell Property of a Minor or Disabled Person Without Permission of the Court in Tennessee?

Under Tennessee law, a guardian or conservator must obtain prior approval of the court in order to sell certain property of a minor or disabled person under the guardianship or conservatorship.  T.C.A. § 34-1-116 provides as follows:

(a) Except as provided in subsections (b) and (d), no property of a minor or person with a disability may be sold without prior approval of the court that appointed the fiduciary.

(b) Unless the fiduciary is holding tangible property for the benefit of a minor or person with a disability pursuant to the terms of a will, trust or other written document, the fiduciary has the authority to sell each item of tangible property with a fair market value of less than one thousand dollars ($1,000) or a motor vehicle without specific court approval…

(d) This section shall not apply to any fiduciary who is not required to file a property management plan or who has had its investment plans approved as part of its property management plan.

There is an exception for any item of tangible property that has a fair market value of less than $1,000.00 or for any motor vehicle.  Sales of these items can be completed without specific court approval unless it is being held pursuant to the terms of a will, trust, or other written document.

If you are a guardian or conservator in Tennessee, this is a very important statute to remember.  Just because you have the powers provided to you by the court does not mean that the powers ar...

In Tennessee, a guardian or conservator must be appointed to distribute a share from an estate to an infant or incompetent individual.

T.C.A. § 30-2-702 discusses how to make payments or distributions to infants and incompetent individuals from an estate.  This applies to individuals who have been adjudicated as incompetent but are without guardians or conservators authorized to receive the property.  The personal representative of the estate, before making the final settlement distribution, is required to file a petition with the court requesting that a guardian be appointed for any minor individual.  If the receiving party is incompetent then the personal representative should request the court to appoint a conservator for the incompetent individual in order to handle the distribution from the estate.

T.C.A. § 30-2-702(b) provides specifically as follows:

(b)(1) In cases involving payees or distributees who are infants or persons adjudicated incompetent and without guardian or conservator authorized to receive the property, the personal representative, before making final settlement, shall file a petition in the court in which the estate is being administered setting out this fact and pray for the appointment of a guardian or conservator, unless petition is made pursuant to § 34-1-104.

(2) The court shall appoint a guardian or conservator, if practicable, or if impracticable, order the property belonging to such infant or person adjudicated incompetent paid or delivered into the state treasury, unless distribution is ordered pursuant to § 34-1-104.

(3) The payment or delivery shall be shown in the report and settlement of the personal representative, exhibiting the receipt of the guardian or state treasurer, as the case may be.

When a child is born outside of marriage, when is the child considered a child of the father for purposes of intestate succession (when someone dies without a will)?

T.C.A. § 31-2-105(a)(2) provides the rules to determine when child is considered a child of a father when the child was born outside of marriage ("wedlock" is the term used in the statute).  Specifically, T.C.A. § 31-2-105 provides as follows:

(a) If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:

(1) An adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent; and

(2) In cases not covered by subdivision (a)(1), a person born out of wedlock is a child of the mother. That person is also a child of the father, if:

(A) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

(B) The paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof, but the paternity established under this subdivision (a)(2)(B) is ineffective to qualify the father or the father's kindred to inherit from or through the child unless the father has openly treated the child as the father's, and has not refused to support the child.

(b) In no event shall a parent be permitted to inherit through intestate succession until all child support arrearages together with interest thereon at the legal rate of interest computed from the date each payment was due have been paid in full to the parent ordered to receive support or to the parent's estate if deceased.

(c) Nothing in this section shall be construed to prevent a child from inheriting from a parent through intestate succession.

As a result there are two possible ways to determine whether a child born outside of marriage is considered a child of the “father” before or after the death of the father.  Basically the child is considered to be a child of the “father” if the parents participated in a marriage ceremony before or after the birth of the child (even when the atte...

How are heirs that are born after decedent's death treated under Tennessee law (when they are conceived before death or after death)?

Determining what happens to heirs that are conceived before death and born after death is relatively easy because the Tennessee legislature has provided a specific statute on this issue.  The question of what happens under Tennessee law to posthumously born children where the conception is accomplished post-death by in vitro fertilization or artificial insemination is much more difficult because the Tennessee legislature has not provided us with guidance to date.

A.         Conception before death – born after death

T.C.A. § 31-2-108 provides that "after born heirs" (those that are conceived before the decedent's death but born after the decedent's death) inherit just like they would if they would have been born during the lifetime of the decedent.  T.C.A. § 31-2-108 provides as follows:

Relatives of the decedent conceived before the decedent's death but born thereafter inherit as if they had been born in the lifetime of the decedent.

As a result, as long as the relative (this could be a child or a collateral relative that somehow inherits from the decedent) is conceived before the decedent's death, then they are considered to have been born during the life of the decedent. 

Obviously, this can cause interesting questions about the date of conception of the baby for purposes of determining whether they can inherit from the deceased individual.  If the relative was conceived after the decedent's death then they are not entitled to be considered to have been born during the lifetime of the decedent.  This could, in some circumstances, cause them to not inherit from the deceased.  The statute does not define or address how to resolve this issue if the date of conception is close enough to death that the parties and court cannot determine which came first, the death or the conception.

Top Three Reasons Why You Need a Will in Tennessee.

Reason Number Three - To try to reduce the likelihood for disagreements and disputes among family members, friends and potential beneficiaries/heirs after your death.

An individual's death is an extremely stressful, emotional, and difficult time for family members and friends of the deceased.  There are often underlying relationship problems of various kinds that exist among family members and friends of the deceased.  Any pre-existing problems are often exacerbated and even made worse by the stress and difficulty of dealing with the death of a loved one. 

A properly drafted and executed will in Tennessee gives you the best opportunity to clearly lay out your intentions to avoid significant disputes over your assets and money.  Too many deaths result in family members fighting.  These disputes are not just about money but can also be about family heirlooms or other items that have no real material value, but are converted into highly valued emotional objects that family and friends focus on in their disputes.  A will is a great tool you can use to try to reduce or even eliminate these disputes because it leaves less wiggle room for family members and friends to disagree about.

Reason Number Two - To decide who will be the legal guardian for your children after your death.

A very important component of a will is that you can select who you desire to be the guardian of your children.  If you have minor children at the time you die, you can designated in your will who you desire to be the guardian for your children until they reach the age of majority (18 years of age in Tennessee).  This is one of the most important decisions you can ever make because the guardians are the individuals who will raise your children after you are gone.

Under Tennessee law a parent can not inherit from an intestate child (child with no will) until all child support owed is paid.

If a parent owes child support, that parent can not inherit from their child in a situation where the child does not have a will.  T.C.A. § 31-2-105(b) provides specific requirements for any parent to inherit from a child when that parent owes child support.  This statute provides as follows:

(b) In no event shall a parent be permitted to inherit through intestate succession until all child support arrearages together with interest thereon at the legal rate of interest computed from the date each payment was due have been paid in full to the parent ordered to receive support or to the parent's estate if deceased.

As a result, a parent must pay all back child support as well as interest from the date each payment was actually due to be made.  If the parent to whom child support is owed is deceased, then the surviving parent must make payments owed to the deceased parent’s estate before the parent can inherit from the child.

What is the Tennessee statute of limitations to set aside the probate of a will?

Tennessee has a two year statute of limitations for proceeding to set aside the probate of a will.  This two year statute of limitations is calculated from the date of the entry of the order admitting the will to probate.  T.C.A. § 32-4-108 provides as follows:

All actions or proceedings to set aside the probate of any will, or petitions to certify a will for an issue of devisavit vel non, must be brought within two (2) years from entry of the order admitting the will to probate, or be forever barred, saving, however, to persons under the age of eighteen (18) years or adjudicated incompetent, at the time the cause of action accrues, the rights conferred by § 28-1-106.

However, there is an extension of time for individuals that are under the age of 18 years of age or are adjudicated incompetent at the time the cause of action accrues.  This extension of the statute of limitations is found in T.C.A. § 28-1-106 which provides as follows:

If the person entitled to commence an action is, at the time the cause of action accrued, either under eighteen (18) years of age, or adjudicated incompetent, such person, or such person's representatives and privies, as the case may be, may commence the action, after legal rights are restored, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from restoration of legal rights.

As a result, individuals who are under 18 years of age or who are adjudicated incompetent at the time the cause of action accrued, have two years from the date of the “restoration of legal rights” to file suit.  The “restoration of legal rights” occurs at the age of 18 for a minor and on the date the incompetent individual is no longer incompetent.