Left Out of a Spouse's Will in Tennessee? Your Rights
If your spouse died in Tennessee and the will left you little or nothing, the law still protects you. A surviving spouse can choose an elective share of 10% to 40% of the net estate, depending on how long you were married, by filing a petition within nine months after the death. You may also be entitled to a year's support allowance, exempt property worth up to $50,000 and homestead rights, much of it protected from creditors.
What is the elective share in Tennessee?
A surviving spouse who elects against the will can take a percentage of the decedent's net estate, based on how long you were married to each other (Tenn. Code Ann. § 31-4-101):
Less than 3 years: 10% of the net estate
3 years but less than 6 years: 20%
6 years but less than 9 years: 30%
9 years or more: 40%
The elective share is a choice, not automatic. What you already receive counts against it (explained below), so electing helps only when the elective share is worth more. Running those numbers is one of the first things we do.
How long do you have to elect?
Nine months. The surviving spouse elects by filing a petition in the court, and mailing or delivering it to the personal representative if there is one, within nine months after the date of death (Tenn. Code Ann. § 31-4-102).
There is a narrow exception: if your title to property left to you in the will is tied up in pending litigation, you can ask the court for an additional year from the date the will was probated (§ 31-4-102(a)(2)). After notice and a hearing, the court orders the elective share paid. You can withdraw the petition any time before the court's final decision.
What counts toward the net estate?
The net estate includes all of the decedent's real property, plus the personal property that passes under the will or by intestacy, reduced by (§ 31-4-101(b)):
Secured debts, to the extent the secured creditors are entitled to collect from their collateral
Funeral and administration expenses
The awards of exempt property, homestead allowance and year's support allowance
Then comes a credit. What the estate must pay you is reduced by the value of assets in the decedent's gross estate that went to you or were for your benefit, other than the homestead allowance, exempt property and year's support. The court measures that gross estate the way federal estate tax law does, with some exclusions (§ 31-4-101(c), as rewritten by Public Chapter 717, effective July 1, 2026).
So gather everything you received because of the death, not just what the will gave you. On request, the personal representative must disclose the state and condition of the estate (§ 31-4-103).
Year's support allowance
A surviving spouse who elects against the will, or whose spouse died without a will, is also entitled to a reasonable money allowance for maintenance during the year after the death. The court sets it based on your previous standard of living and the condition of the estate, and it may consider assets that passed to you outside probate (Tenn. Code Ann. § 30-2-102).
Exempt property up to $50,000
The same surviving spouse is entitled to exempt property with a fair market value of up to $50,000, over and above any debt secured by it (Tenn. Code Ann. § 30-2-101). It covers:
Household items and other tangible personal property normally kept in or used around the decedent's principal residence, not used mainly for business or investment
A motor vehicle or vehicles not used mainly in a trade or business
Apply for this property before it is distributed or sold (§ 30-2-101(c)).
Homestead rights in the home
Tennessee's homestead exemption covers up to $35,000 in real property used as a principal residence. When a head of a family dies, it benefits the surviving spouse for as long as the spouse uses the property as a principal residence (Tenn. Code Ann. § 26-2-301). The spouse applies to the court in the county where the decedent last resided to have it set apart (§ 30-2-204). If it cannot be set apart, the court can have the realty sold and $35,000 of the proceeds held as a homestead, or order $35,000 in cash or personal property paid to the spouse instead (§ 30-2-209).
Actions to set aside exempt property, the year's support and the homestead must be brought within the time limits of § 31-4-102 (§§ 30-2-101(d), 30-2-102(g), 30-2-204(b)). Treat nine months after the death as your deadline for all of them.
How these rights interact with creditors
These protections come ahead of most estate debts:
The elective-share amount is exempt from the claims of unsecured creditors of the estate (§ 31-4-101(d)).
The year's support allowance is the absolute property of the surviving spouse and is exempt from all claims (§ 30-2-102(d)).
Exempt property delivered to the spouse is not liable for claims against the estate (§ 30-2-101(c)).
The homestead exemption does not work against public taxes or purchase-money debt for the home, and a deed of trust the owner signed conveys the property free of it (§ 26-2-301(c), (d)).
Creditors must file claims within the period in the published notice, and no later than twelve months after the death (§§ 30-2-306, 30-2-307). See our guide to executor duties.
What if there is no will?
If your spouse died without a will, Tennessee's intestacy law decides your share: the entire estate if there are no surviving descendants, or the greater of one-third or a child's share if there are (Tenn. Code Ann. § 31-2-104). You may still elect against the intestate share and take the elective share instead (§ 31-4-101(a)). The year's support and exempt property rights also apply to the spouse of someone who died without a will. See what happens if you die without a will in Tennessee.
Why it pays to call early
Nine months goes fast while you are grieving, and the elective share is a numbers decision. In Sumner County, estates are handled in Chancery Court in Gallatin. Bring the will, the death certificate, the deed and any beneficiary paperwork, and we will walk you through your options before the deadline. Learn more on our probate page.
Ready to Talk?
Call (615) 997-7618 to talk with Kylene Ross about your rights as a surviving spouse in Sumner County or a nearby county. Our paralegal Cajun has 20 years of experience in probate, wills and estates. Prefer to write first? Send us a message and we are notified right away.
Comments