Tennessee Elective Share: Spousal Rights and Estate Planning

A surviving spouse in Tennessee cannot be completely disinherited. Regardless of what a will says, state law guarantees the surviving spouse the right to claim an "elective share" of the deceased spouse's net estate. The percentage depends on how long the marriage lasted — and the interaction between elective share rights and power of attorney planning is one of the most commonly overlooked gaps in Tennessee estate documents.

How the Elective Share Works

Tennessee's elective share statute protects surviving spouses from disinheritance by guaranteeing a minimum percentage of the net probate estate:

The "net estate" is not the same as the gross estate. To calculate the net estate, deduct: secured debts (mortgages), funeral expenses, estate administration expenses, the homestead allowance, exempt property, and the year's support allowance. Only what remains after these deductions is subject to the elective share percentage.

The Year's Support Allowance

In addition to the elective share, a surviving spouse (and minor children) can petition the court for a "year's support" — an allowance drawn from the estate to cover living expenses during the first year after the death. This allowance comes off the top before the elective share percentage is calculated, which means it reduces the base amount the share applies to.

The court determines the year's support amount based on the family's standard of living during the marriage and the size of the estate. There is no fixed statutory amount — it is discretionary.

The Power of Attorney Connection

This is where estate planning and POA planning intersect in ways most families miss. Under T.C.A. § 34-6-108(c), claiming or waiving a spousal elective share is classified as a "hot power." This means:

• An agent under a general power of attorney cannot claim or waive the elective share on behalf of the principal unless that power is explicitly granted in the document.
• If the surviving spouse is incapacitated and their POA does not include this hot power, the agent has no legal mechanism to claim or waive the share — and must petition the court for conservatorship authority to make the election.
• The elective share has a filing deadline. If the incapacitated spouse's agent cannot act because the POA lacks this authority, the deadline can pass while the family scrambles through the court system.

For married couples, the hot power to claim or waive the elective share should be explicitly included in both spouses' durable POAs. This is especially important for blended families where the estate plan may intentionally limit what the surviving spouse receives — the agent needs clear authority to either accept or challenge that plan.

What the Elective Share Does Not Cover

The elective share applies only to assets that pass through probate. Assets held in revocable trusts, joint accounts with right of survivorship, payable-on-death designations, and retirement accounts with named beneficiaries bypass probate entirely and are not subject to the elective share.

This is a key estate planning consideration: a spouse who wants to limit the surviving spouse's share can legally do so by moving assets out of the probate estate. Conversely, a surviving spouse who sees most of the estate held in non-probate vehicles may find that the elective share applies to a much smaller pool than expected.

Planning Ahead

The intersection of elective share rights and power of attorney authority is a planning gap that surfaces during the worst possible time — when one spouse is incapacitated or recently deceased. The Tennessee Power of Attorney Kit includes hot powers elections that cover elective share authority, ensuring your agent can act on your behalf when these decisions cannot wait.

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