The Share a Spouse Cannot Be Denied

A Will Cannot Completely Disinherit a Spouse

Tennessee does not let a person leave their spouse out of a will entirely, no matter what the document itself says. Under Tennessee Code Annotated Section 31-4-101, a surviving spouse can choose to take a percentage of the decedent’s estate instead of whatever the will provides, with the exact percentage rising based on how long the couple was married, from 10 percent for a marriage under three years up to 40 percent for a marriage of nine years or longer.

Why This Protection Exists

The elective share rule exists specifically to prevent one spouse from being left with nothing after decades of marriage, even if a will was drafted to favor children from a prior relationship, a new partner, or another beneficiary entirely. Without this protection, a spouse who contributed financially and personally to a marriage for many years could be left with no legal claim to any part of the estate, regardless of what fairness might otherwise suggest. Blended families are especially likely to encounter this particular issue, since a will favoring children from an earlier marriage can unintentionally leave a current spouse with very little.

What Counts Toward the Elective Share Calculation

Tennessee calculates the elective share based on the decedent’s net estate, which can include more than most people expect and is not always limited to what passes directly under the will. Assets that typically factor into this calculation include:

• Property passing to beneficiaries under the terms of the will itself
• Certain assets that were held in a revocable trust established at some point during the marriage
• Property transferred by the decedent shortly before death for significantly less than its fair market value
• Life insurance proceeds and retirement accounts payable to someone other than the spouse in certain circumstances

A Murfreesboro estate planning lawyer can help calculate what a surviving spouse might actually be entitled to claim, since the math is rarely as simple as looking at the will alone and often requires reviewing years of financial records.

Why Estate Plans Need to Account for This Rule

Anyone drafting a will that intentionally limits what a spouse receives needs to understand that the elective share can override those wishes if the spouse chooses to exercise the right. The team at Patterson Bray PLLC helps clients build estate plans that anticipate this possibility, rather than drafting documents that unravel the moment a spouse asserts a claim the will did not anticipate. A plan built without this rule in mind can end up dividing an estate in a way nobody actually intended once the spouse elects against the will.

How a Spouse Actually Exercises This Right

A surviving spouse does not receive the elective share automatically. The right has to be formally asserted within a specific window after the decedent’s death, and missing that deadline generally means accepting whatever the will provides instead. A Murfreesboro estate planning lawyer can help a surviving spouse understand this deadline and evaluate whether exercising the right actually makes financial sense given the specific assets involved. Electing against the will is not always the better financial choice, since it can trigger tax consequences or forfeit other benefits the will itself provided.

Planning With This Rule in Mind

Couples who want more control over how their estate is divided, including limiting what a spouse receives for reasons unique to their situation, often need a more sophisticated planning strategy than a simple will alone can provide. Addressing the elective share directly during the planning process, rather than after a death has already occurred, tends to prevent disputes that could otherwise unravel an otherwise well-considered estate plan.

If you have questions about how the elective share might apply to your estate or a loved one’s, speak with our team about your specific situation and what the numbers might actually look like.