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  • Russell Hayes

What is the "Elective Share"

There seems to be some confusion over what the elective share is, and how much a widow is entitled to from the estate of his/her spouse. The elective share allows a surviving spouse to choose to take a percentage of the net estate of their deceased spouse in lieu of the amount granted to them under their spouse’s will. For example, if the deceased spouse left the surviving spouse 10% of their estate in the will, the surviving spouse may instead choose to take the “elective share” and receive a greater portion of the estate.

The traditional rule in Tennessee and most other states was that a surviving spouse could elect to receive 1/3 of the estate or a child’s share, whichever was greater. However, Tennessee and many other states have revised this rule to grant a percentage based on the length of the marriage. Below is a chart showing the amount a surviving spouse may receive instead of taking under the will.

According to T.C.A. § 31-4-101, the amount of the “net estate” is the value of all property which ordinarily passes through the will or through the laws governing intestate succession (dying without a will). As a result, any property held in a trust or not otherwise subject to probate will probably not be available for the elective share.

There are a few other points to note about the elective share. First, the surviving spouse’s elective share is not subject to the claims of any unsecured creditors of the estate. Second, the elective share may be reduced by property that was previously transferred out of the estate of the deceased spouse to the surviving spouse. Finally, any transfers that were made in an attempt to defeat the elective share may be included in the net estate under T.C.A. § 31-1-105.

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