Spousal Elective Share Requirements in Tennessee

At a glance

Requirements one by one

Governing law and system

Tennessee uses a marriage-length elective share of a defined net estate. Under § 31-4-101(a), it covers both a surviving spouse who elects against a will and a surviving spouse of an intestate decedent who elects against taking the intestate share.

Eligible spouse and who may elect

The ordinary claimant is the surviving spouse, but the statutes add three important qualifications. Section 31-3-120 treats a spouse who does not survive the decedent by 120 hours as having predeceased the decedent for elective-share purposes. Section 31-1-106 makes a felonious and intentional killer forfeit the elective share.

If the spouse was adjudged mentally incompetent or was under 18 when the will was admitted to probate, § 31-4-104 permits a guardian, conservator, or next friend to petition within one year from probate. The court appoints a guardian ad litem, hears proof, and decides whether an election serves the survivor's interest. If the spouse dies before the election period expires, § 31-4-105 lets the spouse's personal representative elect or later withdraw the demand.

Share amount and marriage length

The percentage is 10% for a marriage under three years, 20% from three to under six years, 30% from six to under nine years, and 40% at nine years or more. Years married to the same person are combined even if a divorce separated the marriages.

For example, a seven-year combined marriage and a $600,000 net estate produce a $180,000 elective-share amount before subtracting assets already transferred to or for the spouse: $600,000 × 30%.

Estate base and nonprobate transfers

Section 31-4-101(b) includes all of the decedent's real property and personal property subject to disposition under the will or intestacy laws. It excludes a power-of-appointment asset unless the decedent exercised the power to send that asset to the personal representative for probate administration.

That base is not a general augmented estate. But § 31-1-105 supplies an anti- evasion rule: a conveyance fraudulently made with intent to defeat the spouse's share is includable in the net estate at the spouse's election and is voidable to the extent the remaining net estate cannot fund the amount payable.

Deductions, exclusions, and valuation

Before applying the percentage, § 31-4-101(b) deducts secured debts to the extent secured creditors may realize on the collateral, funeral and administration expenses, exempt property, the homestead allowance, and the year's support allowance.

Then subsection (c) reduces the amount payable by assets included in the decedent's gross estate that passed to or for the spouse. Effective July 1, 2026, Public Chapter 717 replaced the old Tennessee-inheritance-tax method with a federal-estate-tax starting point under 26 U.S.C. § 2031(a), while excluding assets that would not have entered the former Tennessee inheritance-tax gross estate. A life estate or lifetime-benefit trust for the spouse is valued actuarially.

Deadline, extensions, and withdrawal

The ordinary petition deadline is nine months after death. The litigation extension is narrower than a general good-cause extension: when pending litigation over the spouse's title to devised or bequeathed property prevents an informed election, the spouse gets an additional year from probate of the will, and the court may extend further to meet continuing litigation.

A spouse may withdraw the demand any time before the court's final determination. The adjudged-incompetent or minor-spouse route instead uses a one-year-from-probate petition period, subject to an extension already granted.

Filing, service, and court procedure

Section 31-4-102 requires a court petition plus mailing or delivery to the personal representative, if one exists. The court—not the spouse—gives hearing notice to interested persons and to distributees and recipients whose interests would be adversely affected. After notice and hearing, the court determines the share and orders its distribution or vesting.

Waiver and agreement requirements

Chapter 31 does not contain the broad predeath waiver section that appears in many Uniform Probate Code states. Tenn. Code Ann. § 36-3-501 instead governs an antenuptial or prenuptial agreement concerning property owned before marriage. The court may bind the parties to it only if they entered it freely, knowledgeably, in good faith, and without duress or undue influence. A filed elective-share demand may separately be withdrawn before final determination.

Payment sources and recipient liability

The estate first calculates the percentage amount and subtracts the spouse- received assets described in § 31-4-101(c). If a fund or property was already distributed, § 31-4-102(d) still lets the court fix the liability of a person who has an interest in or possession of it, including a trustee. Contribution cannot exceed what that person would have owed if relief had been secured against everyone liable, and the resulting order may be enforced in Tennessee or another jurisdiction.

Effect of election and other spousal rights

The election replaces the spouse's will or intestate share with the statutory percentage calculation. Exempt property, homestead allowance, and year's support are deducted in calculating the net estate but expressly excluded from the spouse-received credit under subsection (c). The remaining elective-share amount payable is exempt from unsecured creditors' claims against the decedent's estate.

What trips people up

• The July 2026 amendment changed the credit formula, not the percentage schedule. Public Chapter 717 changed how the spouse-received gross estate is determined under § 31-4-101(c); it did not alter the 10%–40% tiers or the probate-focused net-estate base.
• Separate marriages to the same person are added together. A divorce does not reset the statutory marriage-length clock if the couple later remarries.
• Nine months from death is the ordinary deadline. The additional year from probate applies only to the specified pending title litigation.
• The protected allowances play two different roles. They reduce the net- estate base but are not subtracted again as spouse-received credits.

Common questions

Can the spouse get estate information before deciding?

Yes. Section 31-4-103 requires the personal representative, upon application, to disclose the state and condition of the spouse-testator's estate so the surviving spouse can act as personal interest may require.

What if the surviving spouse dies before filing?

If the election period has not expired, § 31-4-105 lets the surviving spouse's personal representative make the election. That representative may also withdraw a pending demand before final determination.

Are life insurance and retirement benefits automatically in the net estate?

Not merely because they exist. The net-estate subsection reaches personal property subject to the will or intestacy laws. A separate question is whether an asset transferred to or for the spouse enters the gross-estate credit under the current subsection (c) formula.

Statutes and sources

• Tenn. Code Ann. § 31-4-101 — eligibility against a will or intestacy, percentage tiers, combined marriage years, net-estate base and deductions, spouse credits, and creditor/tax treatment. Tennessee Code title 31 text (accessed 2026-08-02).
• 2026 Tenn. Pub. Acts ch. 717, § 2 — current federal-estate-tax starting point, former-Tennessee-inheritance-tax exclusion, actuarial valuation, and July 1, 2026 effective date. Official Secretary of State act (accessed 2026-08-02).
• Tenn. Code Ann. § 31-4-102 — petition, delivery, deadline, litigation extension, hearing notice, withdrawal, contribution, and enforcement. Tennessee Code title 31 text (accessed 2026-08-02).
• Tenn. Code Ann. §§ 31-4-103 to -105 — estate disclosure, court election for an adjudged-incompetent or minor spouse, and election after the spouse's death. Tennessee Code title 31 text (accessed 2026-08-02).
• Tenn. Code Ann. §§ 31-1-105, 31-1-106(b), and 31-3-120(a) — fraudulent- transfer remedy, slayer forfeiture, and 120-hour survival. Tennessee Code title 31 (accessed 2026-08-02).
• Tenn. Code Ann. § 36-3-501 — enforceability standard for antenuptial and prenuptial premarital-property agreements. Tennessee Code title 36 text (accessed 2026-08-02).