Chapter 1
General Provisions

31-1-101. Title definitions.

As used in this title, unless the context otherwise requires:

  1. “Child” includes any individual, adopted or natural born, entitled to take as a child under this title by intestate succession from the parent whose relationship is involved and excludes any person who is only a stepchild, a foster child, a grandchild or any more remote descendant;
  2. “Devise,” when used as a noun, means a testamentary disposition of real or personal property. “Devise,” when used as a verb, means to dispose of real or personal property by will;
  3. “Devisee” means any person designated in a will to receive a devise. In the case of a devise to an existing trust or trustee, or to a trustee or trust described by a will, the trust or trustee is the devisee and the beneficiaries are not devisees;
  4. “Distributee” means any person who has received property of a decedent from the personal representative other than as a creditor or purchaser;
  5. “Heirs” means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent;
  6. “Issue” of a person means all the person's lineal descendants, adopted as well as natural born, of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in this title;
  7. “Parent” includes any person entitled to take, or who would be entitled to take if the child, adopted or natural born, died without a will, as a parent under this title by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent, or grandparent;
  8. “Personal representative” includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status; and
  9. “Property” includes both real and personal property or any interest therein and means anything that may be the subject of ownership.

Acts 1977, ch. 25, § 1; T.C.A., § 31-101.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 49, 441, 444, 449, 802, 810, 817, 818.

Law Reviews.

Confused by tax reforms? Follow these 10 key rules for better estate planning in Tennessee (Dan W. Holbrook), 37 No. 8 Tenn. B.J. 12 (2001).

Ethics — Petty v. Privette: Exclusion of Attorney Liability in the Area of Estate Administration, 23 Mem. St. U.L. Rev. 687 (1993).

Future Interests—Tennessee Style (Jack D. Jones), 54 Tenn. L. Rev. 413 (1987).

Intestate Succession in Tennessee (Douglas P. Quay), 8 Mem. St. U.L. Rev. 63 (1978).

Marital Deduction Planning Under the Tax Reform Act of 1976 (Ronald S. Borod, William H. Lawson, Jr., Clayton D. Smith), 7 Mem. St. U.L. Rev. 181 (1977).

New-Age Babies and Age-Old Laws: The Need for an Intent-Based Approach in Tennessee to Preserve Parent-Child Succession for Children of Assisted Reproductive Technology (Jane Marie Lewis), 43 U. Mem. L. Rev. 479 (2012).

Selected Tennessee Legislation of 1986, 54 Tenn. L. Rev. 457 (1987).

Some Whys and Wherefores of Will-Drafting — Revised (Robert L. McMurray), 15 No. 2 Tenn. B.J. 2 (1979).

Survey of Tennessee Property Law, II. Estates in General (Toxey H. Sewell), 46 Tenn. L. Rev. 161 (1979).

Symposium: The Role of Federal Law in Private Wealth Transfer: A Fresh Look at State Asset Protection Trust Statutes, 67 Vand. L. Rev. 1741 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Comment, Federalizing Principles of Donative Intent and Unanticipated Circumstances, 67 Vand. L. Rev. 1931 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Comment, Is Federalization of Charity Law All Bad? What States Can Learn from the Internal Revenue Code, 67 Vand. L. Rev. 1621 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Comment, The Stored Communications Act and Digital Assets, 67 Vand. L. Rev. 1729 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Destructive Federal Preemption of State Wealth Transfer Law in Beneficiary Designation Cases: Hillman Doubles Down on Egelhoff, 67 Vand. L. Rev. 1665 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Disclaimers and Federalism, 67 Vand. L. Rev. 1871 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Federal Visions of Private Family Support, 67 Vand. L. Rev. 1835 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: In Search of the Probate Exception, 67 Vand. L. Rev. 1533 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer:  Introduction, 67 Vand. L. Rev. 1531 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Probate Law Meets the Digital Age, 67 Vand. L. Rev. 1697 (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: The Creeping Federalization of Wealth-Transfer Law, 67 Vand. L. Rev. 1635  (2014).

Symposium: The Role of Federal Law in Private Wealth Transfer: Unconstitutional Perpetual Trusts, 67 Vand. L. Rev. 1769 (2014).

NOTES TO DECISIONS

1. Child Born Out of Wedlock.

A child born out of wedlock may inherit from and through its father. Decker v. Meriwether, 708 S.W.2d 390, 1985 Tenn. App. LEXIS 3162 (Tenn. Ct. App. 1985).

2. Heirs.

There is no difference to be made here between the terms “heirs” and “heirs at law.” Wright v. Brandon, 863 S.W.2d 400, 1993 Tenn. LEXIS 346 (Tenn. 1993).

The two terms “per stirpes” and “heirs at law”, used together, do not, absent a clear intent by the testator to the contrary, exclude a surviving spouse of a deceased legatee as a distributee under the terms of a will. Wright v. Brandon, 863 S.W.2d 400, 1993 Tenn. LEXIS 346 (Tenn. 1993).

31-1-102. Effect of divorce, annulment, and decree of separation.

  1. A person who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the person is married to the decedent at the time of death. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.
  2. For purposes of this title, a surviving spouse does not include:
    1. A person who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless they subsequently participate in a marriage ceremony purporting to marry each to the other, or subsequently live together as husband and wife;
    2. A person who, following a valid or invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third person; or
    3. A person who was a party to a valid marital dissolution agreement or a valid proceeding concluded by an order purporting to terminate all marital property rights.

Acts 1977, ch. 25, § 1; T.C.A., § 31-102; Acts 1987, ch. 390, § 2.

Cross-References. Death of former spouse, effect on alimony, § 36-5-105.

Revocation of will by divorce or annulment of marriage, § 32-1-202.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 812.

Law Reviews.

Intestate Succession in Tennessee (Douglas P. Quay), 8 Mem. St. U.L. Rev. 63 (1978).

Protection Against Spousal Disinheritance: A Critical Analysis of Tennessee's New Forced Share System, 28 U. Mem. L. Rev. 561 (1998).

Survey of Tennessee Property Law, II. Estates in General (Toxey H. Sewell), 46 Tenn. L. Rev. 161 (1979).

The Revocation-Upon-Divorce Doctrine: Tennessee's Need to Adopt the Broader Uniform Probate Code Approach (Hailey H. David), 39 U. Mem. L. Rev. 383 (2009).

NOTES TO DECISIONS

1. Construction.

The word “valid” means “of binding force, sustainable and effective in law.” Oakley v. Oakley, 686 S.W.2d 85, 1984 Tenn. App. LEXIS 3151 (Tenn. Ct. App. 1984).

2. Marital Dissolution Agreements.

There might be valid property settlement agreements between spouses executed for limited purposes, and some of these could affect only a small portion of the total assets of the parties; however, only if the agreement purports to conclude all marital rights and to effect a full settlement thereof under all contingencies would it have the effect of waiving the right to dissent or other rights of a surviving spouse. In re Estate of Montesi, 682 S.W.2d 906, 1984 Tenn. LEXIS 909 (Tenn. 1984).

A valid property settlement agreement between spouses does not automatically constitute a waiver of all rights as a surviving spouse. In re Estate of Montesi, 682 S.W.2d 906, 1984 Tenn. LEXIS 909 (Tenn. 1984).

Only an agreement which purports to conclude all material rights and to effect a full settlement thereof under all contingencies has the effect of waiving the right to dissent or other rights of the surviving spouse. In re Estate of Montesi, 682 S.W.2d 906, 1984 Tenn. LEXIS 909 (Tenn. 1984); Hall v. Jeffers, 767 S.W.2d 654, 1988 Tenn. App. LEXIS 635 (Tenn. Ct. App. 1988).

A property settlement agreement which was contingent upon court approval was not a “valid” agreement until the court approved it. Oakley v. Oakley, 686 S.W.2d 85, 1984 Tenn. App. LEXIS 3151 (Tenn. Ct. App. 1984).

3. Prenuptial Agreements.

The terms of the prenuptial agreement were not such as to preclude the surviving spouse from taking an elective share of the estate as provided by statute. Hall v. Jeffers, 767 S.W.2d 654, 1988 Tenn. App. LEXIS 635 (Tenn. Ct. App. 1988).

31-1-103. [Repealed.]

Acts 1977, ch. 25, § 1; 1978, ch. 763, § 1; T.C.A., § 31-103; Acts 1986, ch. 705, § 1; 1995, ch. 177, § 2; 2011, ch. 417, § 4; 2017, ch. 290, § 7; repealed by Acts 2019, ch. 340,  § 1, effective May 10, 2019.

Compiler's Notes. Former § 31-1-103 concerned disclaimer provisions.

31-1-104. Descent of homestead.

  1. Unless the homestead has been converted to cash by order of the court pursuant to § 30-2-209, and distributed outright and in fee, the homestead exempt in the possession of or belonging to each head of a family shall, upon that person's death, any provision by will to the contrary notwithstanding, go to the surviving spouse during the surviving spouse's natural life, with the products of the homestead, for the surviving spouse's own use and benefit and that of the surviving spouse's family who reside with the surviving spouse, and, upon the surviving spouse's death, any provision by will to the contrary notwithstanding, it shall go to the minor children of the decedent, free from the debts of the father, mother, or children. Upon the death of the minor child or children, or their arrival of age, the land may be sold, and the proceeds distributed among the heirs of the deceased head of a family as if the head of the family had died intestate.
  2. Upon the death of the head of a family, without surviving spouse or minor children, the land shall be subject to sale for the payment of the debts as may be legally established against the person's estate as in other cases, and the remainder distributed among the person's heirs.

Acts 1976, ch. 538, § 2; 1977, ch. 25, §§ 4, 5; T.C.A., § 31-104; Acts 1985, ch. 140, § 26.

Cross-References. Homestead, title 30, ch. 2, part 2.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 648, 649, 654, 816.

Law Reviews.

Intestate Succession in Tennessee (Douglas P. Quay), 8 Mem. St. U.L. Rev. 63 (1978).

Collateral References.

Direction in will for payment of debts and expenses as subjecting exempt homestead to their payment. 103 A.L.R. 257.

Remarriage as affecting one's status as a “widow” or “widower” for purposes of statute of descent and distribution. 72 A.L.R. 1324.

31-1-105. Fraudulent conveyance to defeat share voidable.

Any conveyance made fraudulently to children or others, with an intent to defeat the surviving spouse of the surviving spouse's distributive or elective share, is, at the election of the surviving spouse, includable in the decedent's net estate under § 31-4-101(b), and voidable to the extent the other assets in the decedent's net estate are insufficient to fund and pay the elective share amount payable to the surviving spouse under § 31-4-101(c).

Acts 1976, ch. 529, § 1; 1977, ch. 25, §§ 4, 5; T.C.A., §§ 31-105, 31-616; Acts 2002, ch. 735, § 4.

Cross-References. Elective share of surviving spouse, title 31, ch. 4.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 811, 812.

Law Reviews.

Conveyances Affecting the Surviving Spouse's Elective Share: Tennessee's Past and a Look to the Future, 57 Tenn. L. Rev. 677 (1990).

Descent and Distribution — Fraudulent Conveyances — Intent to Deprive Surviving Spouse of His or Her Distributive or Elective Share, 50 Tenn. L. Rev. 551 (1983).

Intestate Succession in Tennessee (Douglas P. Quay), 8 Mem. St. U.L. Rev. 63 (1978).

Protection Against Spousal Disinheritance: A Critical Analysis of Tennessee's New Forced Share System, 28 U. Mem. L. Rev. 561 (1998).

TennCare: Expanded Estate Recovery - Recover at ALL Cost, 45 U. Mem. L. Rev. 711 (2015).

NOTES TO DECISIONS

1. History of Section.

The genesis of this section is chapter 22, section 8 of the Acts of North Carolina adopted at Hillsborough on April 19, 1784. Warren v. Compton, 626 S.W.2d 12, 1981 Tenn. App. LEXIS 558 (Tenn. Ct. App. 1981).

2. In General.

Before this section is applicable, the transfer of property must have been made fraudulently with an intent to defeat the rights of the complaining spouse. Warren v. Compton, 626 S.W.2d 12, 1981 Tenn. App. LEXIS 558 (Tenn. Ct. App. 1981).

3. Transfers to Children.

A bona fide advancement of real estate to a child, whereby the husband actually and openly divests himself of the property, and the enjoyment thereof, according to the wants of the child and the condition of the husband's property and family is not necessarily a conveyance made fraudulently with intention to deprive a widow of dower. Warren v. Compton, 626 S.W.2d 12, 1981 Tenn. App. LEXIS 558 (Tenn. Ct. App. 1981).

4. Indicia of Fraud.

The lack of full consideration standing alone is not sufficient evidence to infer an intention to defraud. Warren v. Compton, 626 S.W.2d 12, 1981 Tenn. App. LEXIS 558 (Tenn. Ct. App. 1981).

The following factors should be considered in determining whether the husband intended to practice a fraud upon his wife: (1) Whether the transfer was made with or without consideration; (2) the size of the transfer in relation to the husband's total estate; (3) the time between the transfer and the husband's death; (4) relations which existed between the husband and the wife at the time of the transfer; (5) the source from which the property came; (6) whether the transfer was illusory; and (7) whether the wife was adequately provided for in the will. Finley v. Finley, 726 S.W.2d 923, 1986 Tenn. App. LEXIS 3362 (Tenn. Ct. App. 1986).

Evidence was not sufficient to carry the burden of proof to show the establishment of the bank account was made fraudulently by the decedent, with an intent to defeat the rights of the complaining spouse. Finley v. Finley, 726 S.W.2d 923, 1986 Tenn. App. LEXIS 3362 (Tenn. Ct. App. 1986).

A transfer, even if supported by either a good or a valuable consideration, may not circumvent the provisions of T.C.A. § 31-1-105. In re Estate of Parsley, 864 S.W.2d 36, 1988 Tenn. App. LEXIS 358 (Tenn. Ct. App. 1988).

A strained marriage relationship does not of itself establish fraudulent intent, but is one factor that a court may consider along with all of the other factors and circumstances. The strained marriage relationship would logically motivate one to attempt to deprive his or her spouse of any share in an estate in favor of a child or other loved one. In re Estate of Parsley, 864 S.W.2d 36, 1988 Tenn. App. LEXIS 358 (Tenn. Ct. App. 1988).

In light of the lack of consideration for husband's transfers of property to daughter while alive, the size of such transfers, the timing of the transfers and the strained marital relationship, the trial court properly ruled that the transfers were fraudulent and made for the purpose of defeating the surviving spouse's right to her elective share of the estate in violation of this section. In re Estate of Parsley, 864 S.W.2d 36, 1988 Tenn. App. LEXIS 358 (Tenn. Ct. App. 1988).

6. Evidence.

Other provisions for the surviving spouse, whether made by will or gift, are to be considered on the issue of fraudulent intent on the part of the donor spouse in making gifts to persons other than the surviving spouse so as to avoid her dower rights. Warren v. Compton, 626 S.W.2d 12, 1981 Tenn. App. LEXIS 558 (Tenn. Ct. App. 1981).

7. Persons Who May Sue.

The widow was not a creditor under § 66-3-101 so as to have standing for an action to have husband's transfer of property declared fraudulent with intent to defeat wife's distributive share of his estate. McClure v. Stegall, 729 S.W.2d 263, 1987 Tenn. App. LEXIS 2538 (Tenn. Ct. App. 1987).

31-1-106. Effect of felonious and intentional killing of decedent.

  1. For purposes of this section:
    1. “Disposition or appointment of property” includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument;
    2. “Felonious and intentional killing” or “feloniously and intentionally kills” includes the felonious and intentional act of conspiring with another to kill or procure the killing of an individual decedent;
    3. “Governing instrument” means a governing instrument executed by the decedent; and
    4. “Revocable,” with respect to a disposition, appointment, provision, or nomination, means one  under which the decedent, at the time of or immediately before death, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the killer, whether or not the decedent was then empowered to designate the decedent in place of the decedent's killer and whether or not the decedent then had capacity to exercise the power.
  2. An individual who feloniously and intentionally kills the decedent forfeits all benefits with respect to the decedent's estate, including an intestate share, an elective share, an omitted spouse's or child's share, a homestead allowance, exempt property, and a family allowance. If the decedent died intestate, the decedent's intestate estate passes as if the killer predeceased the decedent.
  3. The felonious and intentional killing of the decedent:
    1. Revokes any revocable:
      1. Disposition or appointment of property made by the decedent to the killer in a governing instrument;
      2. Provision in a governing instrument conferring a general or nongeneral power of appointment on the killer; and
      3. Nomination of the killer in a governing instrument to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, or agent;
    2. Severs the interests of the decedent and killer in property held by the decedent and the killer at the time of the killing as joint tenants with the right of survivorship or as community property with the right of survivorship, transforming the interests of the decedent and killer into equal tenancies in common; and
    3. Eliminates any right the perpetrator of the killing otherwise has to file or maintain an action for wrongful death arising out of the death of the decedent or to share in any portion of the proceeds of any wrongful death settlement or judgment resulting from a wrongful death lawsuit.
  4. A severance under subdivision (c)(2) does not affect a third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship of the killer, unless a writing declaring the severance has been noted, registered, filed, or recorded in records that are:
    1. Appropriate to the kind and location of the property;
    2. In the ordinary course of transactions involving the property; and
    3. Recorded as evidence of ownership.
  5. Provisions of a governing instrument are to be given effect as if the killer disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent.
  6. A wrongful acquisition of property or interest by a killer not covered by this section must be treated in accordance with the principle that a killer cannot profit from the killer's wrong.
  7. A judgment of conviction establishing criminal accountability for the felonious and intentional killing of the decedent is conclusive evidence that the individual is the decedent's killer for purposes of this section.
      1. Before the payor or other third party receives written notice of a claimed forfeiture or revocation under this section, the payor or other third party is not liable for having:
  9. Made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by an intentional and felonious killing; or

Taken any other action in good faith reliance on the validity of the governing instrument, upon request and satisfactory proof of the decedent's death.

A payor or other third party is liable for a payment made or action taken after the payor or other third party received written notice sent pursuant to subdivision (h)(2)(A) of a claimed forfeiture or revocation under this section.

(A)  Written notice of a claimed forfeiture or revocation under subdivision (h)(1) must be mailed to the payor's or other third party's main office or home by either:

Registered or certified mail, return receipt requested; or

Served upon the payor or other third party in the same manner as a summons in a civil action.

Upon receipt of written notice of a claimed forfeiture or revocation under this section, a payor or other third party may pay any amount owed or transfer or deposit any item or property held by the payor to or with the court having jurisdiction of the probate proceeding relating to the decedent's estate, or if no proceedings have been commenced, to or with the court having jurisdiction of the probate proceeding relating to decedents' estates in the county of the decedent's residence.

The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the court's determination.

Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.

(1)  (A)  Except as otherwise provided in subdivision (i)(2), a person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is not obligated under this section to return the payment, item of property, or benefit, and is not liable under this section for the amount of the payment or the value of the item of property or benefit.

A person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment or the value of the item of property or benefit to the person who is entitled to it under this section.

If this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it as if this section was not preempted.

Acts 1976, ch. 538, § 8; T.C.A., § 31-117; Acts 2017, ch. 290, § 8; 2019, ch. 101, § 1.

Compiler's Notes. Acts 2019, ch. 101, § 2 provided that the act, which amended this section, shall apply to any lawsuit covered by the provisions of the act that is filed on or after April 11, 2019.

Amendments. The 2017 amendment rewrote the section which read: “Any person who kills, or conspires with another to kill, or procures to be killed, any other person from whom the first named person would inherit the property, either real or personal, or any part of the property, belonging to the deceased person at the time of the deceased person's death, or who would take the property, or any part of the property, by will, deed, or otherwise, at the death of the deceased, shall forfeit all right in the property, and the property shall go as it would have gone under § 31-2-104, or by will, deed or other conveyance, as the case may be; provided, that this section shall not apply to any killing done by accident or in self-defense.”

The 2019 amendment added (c)(3).

Effective Dates. Acts 2017, ch. 290, § 16. July 1, 2017.

Acts 2019, ch. 101, § 2. April 11,  2019.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 636, 811.

Law Reviews.

Conveyances Affecting the Surviving Spouse's Elective Share: Tennessee's Past and a Look to the Future, 57 Tenn. L. Rev. 677 (1990).

Paine on Procedure: The Slayer Statute (Donald F. Paine), 49 Tenn. B.J. 36 (2013).

Survey of Tennessee Property Law, II. Estates in General (Toxey H. Sewell), 46 Tenn. L. Rev. 161 (1979).

NOTES TO DECISIONS

1. Constitutionality.

Prohibiting husband who feloniously killed his wife from gaining the conversion of his tenancy by the entirety into a fee simple estate, and instead converting it into a tenancy in common, did not violate Tenn. Const., art. I, § 12 by allowing a forfeiture of vested interest in land. Hicks v. Boshears, 846 S.W.2d 812, 1993 Tenn. LEXIS 27 (Tenn. 1993).

2. Presumptions.

The general assembly has not enacted a statutory presumption that the slayer predeceased his victim. Carter v. Hutchison, 707 S.W.2d 533, 1985 Tenn. App. LEXIS 3444 (Tenn. Ct. App. 1985).

3. —Intent to Kill.

The language and purpose of this section requires that a beneficiary must have intended to kill the insured before the beneficiary is barred from taking the proceeds of the policy. Moore v. State Farm Life Ins. Co., 878 S.W.2d 946, 1994 Tenn. LEXIS 169 (Tenn. 1994).

Husband, who was the primary beneficiary under a policy of insurance on the life of his wife, was not barred from receiving the proceeds of the policy even though he was convicted, on a plea of guilty, of vehicular homicide for his wife's death. Moore v. State Farm Life Ins. Co., 878 S.W.2d 946, 1994 Tenn. LEXIS 169 (Tenn. 1994).

4. Constructive Trust.

The Tennessee supreme court has declined to adopt the “constructive trust” theory that has been followed in many other states. Carter v. Hutchison, 707 S.W.2d 533, 1985 Tenn. App. LEXIS 3444 (Tenn. Ct. App. 1985).

5. Descendants of Wrongdoer.

The general assembly, by enacting this section, did not intend to prevent certain of the victim's descendants from receiving a portion of the estate when these descendants are also the children of the person who killed the deceased. Carter v. Hutchison, 707 S.W.2d 533, 1985 Tenn. App. LEXIS 3444 (Tenn. Ct. App. 1985).

6. Surviving Spouse.

In the event the surviving spouse is found to have intentionally caused the death of his or her spouse, T.C.A. § 31-1-106 excludes the surviving spouse as a beneficiary of a cause of action for wrongful death. House v. Gibson, 827 S.W.2d 310, 1991 Tenn. App. LEXIS 798 (Tenn. Ct. App. 1991), rehearing denied, — S.W.2d —, 1991 Tenn. App. LEXIS 861 (Tenn. Ct. App. 1991), appeal denied, 1992 Tenn. LEXIS 259 (Tenn. Mar. 16, 1992).

7. “Next of Kin.”

Natural mother of decedent qualified as “next of kin” pursuant to T.C.A. § 20-5-106 and could maintain an action alleging that the decedent's death was brought about by the intentional act of the surviving spouse. House v. Gibson, 827 S.W.2d 310, 1991 Tenn. App. LEXIS 798 (Tenn. Ct. App. 1991), rehearing denied, — S.W.2d —, 1991 Tenn. App. LEXIS 861 (Tenn. Ct. App. 1991), appeal denied, 1992 Tenn. LEXIS 259 (Tenn. Mar. 16, 1992).

8. Tenancy by Entireties.

Husband who feloniously killed his wife was prohibited from gaining the conversion of his tenancy by the entirety into a fee simple estate; instead, the tenancy by the entirety was converted into a tenancy in common by the husband's act in feloniously killing the other tenant, and the result was that an undivided one-half interest in the property was owned by the husband, and an undivided one-half interest, descended by the laws of descent and distribution, or by will, deed, other conveyance. Hicks v. Boshears, 846 S.W.2d 812, 1993 Tenn. LEXIS 27 (Tenn. 1993).

9. Fraud.

Trial court did not err in dismissing a daughter's action seeking to overturn a settlement agreement she entered into with a stepfather based upon fraud in the inducement under Tenn. R. Civ. P. 60.02 because there was no actionable claim for fraud; the daughter never relied on the stepfather's representation that he did not kill her mother, but rather, the daughter's entire case always rested on a scenario whereby the stepfather killed the mother in a manner covered by the “Slayer's Statute,” T.C.A. § 31-1-106. Gentry v. Larkin, 389 S.W.3d 330, 2012 Tenn. App. LEXIS 465 (Tenn. Ct. App. July 13, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 953 (Tenn. Dec. 10, 2012).

Collateral References.

Disqualification of heir who murdered intestate as affecting rights of others in respect of the intestate estate. 156 A.L.R. 623, 161 A.L.R. 448.

Felonious killing of one cotenant or tenant by the entireties by the other as affecting the latter's right in the property. 42 A.L.R.3d 1116.

Homicide as precluding taking under will or by intestacy. 25 A.L.R.4th 787.

Killing of insured by beneficiary as affecting life insurance or its proceeds. 27 A.L.R.3d 794.

Marital rights in spouse's estate of husband or wife killing spouse. 71 A.L.R. 283, 139 A.L.R. 486.

Murder of decedent, constitutionality of statute precluding inheritance by. 6 A.L.R. 1408.

31-1-107. Federal income tax refund or soil conservation payments due deceased — To whom paid.

  1. In any case where the United States treasury department determines there exists an overpayment of federal income tax and the person in whose favor the overpayment is determined is dead at the time the overpayment of tax is to be refunded and where no administrator or executor has been appointed within sixty (60) days of the death of the deceased person, and irrespective of whether the deceased had filed a joint and several or separate income tax return, the amount of the overpayment, if not in excess of five hundred dollars ($500), shall be the sole and separate property of the decedent's survivor or survivors, if any, entitled thereto in accordance with the laws of descent and distribution of the state, and refund of the overpayment directly to the survivor or survivors by the United States shall operate as a complete acquittal and discharge to it of liability from any suit, claim or demand of whatsoever nature by any creditor of the decedent or other person.
  2. In the event the person to whom soil conservation payments are due from the United States under the Soil Conservation and Domestic Allotment Act (16 U.S.C. § 590a et seq.) of the Congress of the United States dies before the payments are made, then the payments shall be made to the surviving spouse of that person for the use of the surviving spouse and minor children, and in the event there are minor children and no surviving spouse (the mother or father of the minor children), then and in that event the payments shall be made to the natural guardian of the minor children; and in the event there is no surviving spouse, or minor children, then the payments shall be made to those entitled under the laws of descent and distribution of the state, unless the deceased leaves a will, in which event they shall be made to those entitled under the will. All such payments shall be free from the claims of any and all creditors, except the United States.

Acts 1976, ch. 538, §§ 9, 10; T.C.A., §§ 31-118, 31-119.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 659.

31-1-108. Tenancies by the entirety unaffected.

Nothing in this chapter shall be construed as abolishing tenancies by the entirety.

Acts 1976, ch. 538, § 13; T.C.A., § 31-120.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 441, 444, 449.

Law Reviews.

New-Age Babies and Age-Old Laws: The Need for an Intent-Based Approach in Tennessee to Preserve Parent-Child Succession for Children of Assisted Reproductive Technology (Jane Marie Lewis), 43 U. Mem. L. Rev. 479 (2012).

Chapter 2
Intestate Succession

31-2-101. Intestate estate.

  1. When any person dies intestate, after the payment of debts and charges against the estate, the deceased's property passes to the deceased's heirs as prescribed in the following sections of this chapter.
  2. Any part of the estate of a decedent not effectively disposed of by the deceased's will passes to the deceased's heirs in the same manner.

Acts 1977, ch. 25, § 2; T.C.A., § 31-201.

Cross-References. Application for alcoholic beverage license or permit by intestate successor, § 57-5-108.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 1, 31, 255, 441, 444, 449, 503, 619, 659, 808, 819.

Law Reviews.

Decedent's Estates: The Rights of Adopted Persons Under Tennessee's Descent and Distribution and Adoption Statutes to Take by Intestate Succession or by Will or Trust, 22 Mem. St. U.L. Rev. 339 (1992).

Descent and Distribution — Fraudulent Conveyances — Intent to Deprive Surviving Spouse of His or Her Distributive or Elective Share, 50 Tenn. L. Rev. 551 (1983).

Intestate Succession in Tennessee (Douglas P. Quay), 8 Mem. St. U.L. Rev. 63 (1978).

Marital Deduction Planning Under the Tax Reform Act of 1976 (Ronald S. Borod, William H. Lawson, Jr., Clayton D. Smith), 7 Mem. St. U.L. Rev. 181 (1977).

Property Law — Wills — Effect of Lapsed Residuary Gifts in the State of Tennessee, 73 Tenn L. Rev. 711 (2006).

The Parent-Child Relationship Under Intestacy Statutes (Susan N. Gary), 32 U. Mem. L. Rev. 643 (2002).

NOTES TO DECISIONS

1. Illustrative Cases.

Where decedent died intestate as to the excess property not specifically devised in her will, her sister's children inherited a residence not provided for in the will by intestate succession. In re Estate of Milam, 181 S.W.3d 344, 2005 Tenn. App. LEXIS 203 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 819 (Tenn. Oct. 3, 2005).

In a case arising from the distribution of settlement proceeds in which the children of the deceased argued that the settlement proceeds should be distributed in accordance with a document that they propounded was the deceased's will, since that will had not been probated, it had not legal effect. Additionally, since there was no estate opened and no will admitted to probate, the proceeds of the personal injury action passed in accordance with the laws on intestate succession. Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 238 (Tenn. Mar. 15, 2010).

Trial court did not have the authority to approve the distribution of the residue of a self-settled Supplemental Needs Trust established by the co-conservators of a disabled ward to specific charities, when the ward had not executed a will and lacked testamentary capacity, because, after the wards death, any amount remaining in the Supplemental Needs Trust after the wards death and repayment to the State of Tennessee was to be distributed to the ward's estate. In re Wade, 484 S.W.3d 151, 2015 Tenn. App. LEXIS 634 (Tenn. Ct. App. Aug. 5, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1073 (Tenn. Dec. 14, 2015).

Collateral References.

Lack of final settlement of intestate's estate as affecting heir's right to partition of realty. 92 A.L.R.3d 473.

Right to probate subsequently discovered will as affected by completed prior proceedings in intestate administration. 2 A.L.R.4th 1315.

31-2-102. Dower and curtesy abolished.

Dower and curtesy, as formerly known, are abolished. This section shall neither abridge nor affect rights that have vested before April 1, 1977.

Acts 1976, ch. 529, § 1; 1977, ch. 25, §§ 4, 5; T.C.A., § 31-202.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 426, 460, 647, 650, 810, 811, 943.

Tennessee Jurisprudence, 8 Tenn. Juris., Curtesy, § 1; 9 Tenn. Juris., Descent and Distribution, §§ 8, 9, 12; 10 Tenn. Juris., Dower, § 1; 18 Tenn. Juris., Marriage, § 6; 18 Tenn. Juris., Mandamus, § 6; 18 Tenn. Juris., Marriage Contracts and Settlements, § 3; 20 Tenn. Juris., Partition, § 14; 21 Tenn. Juris., Redemption of Real Estate Sold for Debt, § 32; 24 Tenn. Juris., Vendor and Purchaser, § 46; 25 Tenn. Juris., Waste, § 1; 25 Tenn. Juris., Wills, § 166.

Law Reviews.

Intestate Succession in Tennessee (Douglas P. Quay), 8 Mem. St. U.L. Rev. 63 (1978).

Protection Against Spousal Disinheritance: A Critical Analysis of Tennessee's New Forced Share System, 28 U. Mem. L. Rev. 561 (1998).

Survey of Tennessee Property Law, II. Estates in General (Toxey H. Sewell), 46 Tenn. L. Rev. 161 (1979).

31-2-103. Vesting of estate — Net estate.

The real property of an intestate decedent shall vest immediately upon death of the decedent in the heirs as provided in § 31-2-104. The real property of a testate decedent vests immediately upon death in the beneficiaries named in the will, unless the will contains a specific provision directing the real property to be administered as part of the estate subject to the control of the personal representative. Upon qualifying, the personal representative shall be vested with the personal property of the decedent for the purpose of first paying administration expenses, taxes, and funeral expenses and then for the payment of all other debts or obligations of the decedent as provided in § 30-2-317. If the decedent's personal property is insufficient for the discharge or payment of a decedent's obligations, the personal representative may utilize the decedent's real property in accordance with title 30, chapter 2, part 4. After payment of debts and charges against the estate, the personal representative shall distribute the personal property of an intestate decedent to the decedent's heirs as prescribed in § 31-2-104, and the property of a testate decedent to the distributees as prescribed in the decedent's will.

Acts 1977, ch. 25, § 3; 1978, ch. 763, §§ 4, 5; T.C.A., § 31-602; Acts 1985, ch. 140, § 27.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 650, 810, 816.

Tennessee Jurisprudence,  9 Tenn. Juris., Descent and Distribution, § 5; 10 Tenn. Juris., Equitable Conversion, § 5; 12 Tenn. Juris., Executors and Administrators, § 24; 25 Tenn. Juris., Wills, § 166.

Law Reviews.

Conveyances Affecting the Surviving Spouse's Elective Share: Tennessee's Past and a Look to the Future, 57 Tenn. L. Rev. 677 (1990).

Decedent's Estates — Bilbrey v. Smithers: Limitations on Post-Death Claims for Purposes of Intestate Succession in Tennessee, 27 U. Mem. L. Rev. 517 (1997).

Survey of Tennessee Property Law, II. Estates in General (Toxey H. Sewell), 46 Tenn. L. Rev. 161 (1979).

Survey of Tennessee Property Law, V. Trusts (Beverly A. Rowlett), 48 Tenn. L. Rev. 95 (1981).

Vesting of Title in Probate Estate: The Curious Meaning of Words (Dan Holbrook), 38 No. 12 Tenn. B.J. 26 (2002).

NOTES TO DECISIONS

1. Born Out of Wedlock.

Illegitimate children may inherit, under § 31-2-105, from and through the father where the rights of inheritance have not finally vested; therefore, the phrase “shall vest immediately upon death” in this section is not the final vesting. To hold otherwise would be to bar illegitimate children from establishing paternity after the death of the father. McCluskey v. Weaver, 667 S.W.2d 747, 1982 Tenn. App. LEXIS 458 (Tenn. Ct. App. 1982).

A child born out of wedlock, whose paternity was not adjudicated prior to the death of the father, can establish the right to inherit by intestate succession by asserting that right against the estate of the deceased owner of the property in which an interest is claimed within the time allowed for creditors to file claims against the estate, and by establishing paternity by clear and convincing proof. Bilbrey v. Smithers, 937 S.W.2d 803, 1996 Tenn. LEXIS 527 (Tenn. 1996).

2. Vesting Subject to Claims.

Although property owned by decedent at the time of death vested in the beneficiaries, it vested subject to the discharge of claims against the estate, including the surviving spouse's elective share. Gentry v. Gentry, 924 S.W.2d 678, 1996 Tenn. LEXIS 425 (Tenn. 1996).

3. Illustrative Cases.

Where chapter 7 trustee irrevocably abandoned the debtor's interest in certain real property under 11 U.S.C. § 554(a), and subsequently sought to sell the property pursuant to 11 U.S.C. § 363 to pay administrative expenses, the trustee was precluded from relying on T.C.A. § 31-2-103 to retain the property in the estate. In re Racsko, — B.R. —, 2012 Bankr. LEXIS 3494 (Bankr. E.D. Tenn. July 30, 2012).

Personal representative who was appointed to administer a decedent's estate had the authority under T.C.A. § 31-2-103 to place a corporation the decedent established into bankruptcy, even though the corporation had been dissolved, and the bankruptcy court invalidated a foreclosure sale that occurred after the corporation was placed into bankruptcy, pursuant to 11 U.S.C. § 362, even though the buyer did not know that the corporation had been placed into bankruptcy at the time he purchased property at the foreclosure sale. The corporation had the right under 11 U.S.C. § 301 to declare bankruptcy because dissolved corporations were allowed under T.C.A. § 48-24-105(a) to carry on business that was appropriate to winding up their affairs. In re Benchmark Capital, Inc., 490 B.R. 566, 2013 Bankr. LEXIS 1478 (Bankr. E.D. Tenn. Apr. 9, 2013).

Property at issue vested in the decedent's designated heir when the personal representative executed warranty deeds for the property, despite the fact that the deeds were never recorded. The personal representative intended to transfer the property, to the extent the personal representative held any title as personal representative of the estate, when the personal representative executed the deeds and advised the heir of the deeds, while the heir paid the expenses for the property and treated the property as the heir's own. In re Estate of Schubert, — S.W.3d —, 2020 Tenn. App. LEXIS 419 (Tenn. Ct. App. Sept. 18, 2020).

4. Conservatorship to Be Resolved First.

Probate court erred construing the language of a decedent's will as conferring authority on the administrator to sell the decedent's real property because the court's order was premature inasmuch as the conservatorship had be resolved first with any funds remaining in the conservatorship transferred to the decedent's estate before the claims against the estate could be resolved and the disposition of the property determined. In re Estate of Hudson, — S.W.3d —, 2019 Tenn. App. LEXIS 62 (Tenn. Ct. App. Feb. 4, 2019).

Collateral References.

Liability for administration expenses of spouse electing against will, 89 A.L.R.3d 315.

31-2-104. Share of surviving spouse and heirs.

  1. The intestate share of the surviving spouse is:
    1. If there is no surviving issue of the decedent, the entire intestate estate; or
    2. If there are surviving issue of the decedent, either one-third (1/3) or a child's share of the entire intestate estate, whichever is greater.
  2. The part of the intestate estate not passing to the surviving spouse under subsection (a) or the entire intestate estate if there is no surviving spouse, passes as follows:
    1. To the issue of the decedent; if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation;
    2. If there is no surviving issue, to the decedent's parent or parents equally;
    3. If there is no surviving issue or parent, to the brothers and sisters and the issue of each deceased brother and sister by representation; if there is no surviving brother or sister, the issue of brothers and sisters take by representation; or
    4. If there is no surviving issue, parent, or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there is no surviving grandparent or issue of grandparent on either the paternal or maternal side, the entire estate passes to the relatives on the other side in the same manner as the half.

Acts 1976, ch. 538, § 1; 1977, ch. 25, § 4; 1978, ch. 763, § 2; T.C.A., §§ 31-203, 31-204.

Compiler's Notes. Acts 2003, ch. 219, § 1 provided that, notwithstanding any other provision of law to the contrary, the spouse of an intestate decedent may elect to take the intestate share provided pursuant to subsection (a) of this section, or may elect to take an elective-share amount to be determined in accordance with the percentages set out in § 31-4-101.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 549, 810, 812, 816, 817, 824, 825, 830.

Law Reviews.

Intestate Succession in Tennessee (Douglas P. Quay), 8 Mem. St. U.L. Rev. 63 (1978).

Marital Deduction Planning Under the Tax Reform Act of 1976 (Ronald S. Borod, William H. Lawson, Jr., Clayton D. Smith), 7 Mem. St. U.L. Rev. 181 (1977).

New-Age Babies and Age-Old Laws: The Need for an Intent-Based Approach in Tennessee to Preserve Parent-Child Succession for Children of Assisted Reproductive Technology (Jane Marie Lewis), 43 U. Mem. L. Rev. 479 (2012).

Some Order Out of Chaos in Wrongful Death Law (T. A. Smedley), 37 Vand. L. Rev. 273 (1984).

Some Whys and Wherefores of Will-Drafting — Revised (Robert L. McMurray), 15 No. 2 Tenn. B.J. 2 (1979).

Survey of Tennessee Property Law, II. Estates in General (Toxey H. Sewell), 46 Tenn. L. Rev. 161 (1979).

NOTES TO DECISIONS

1. “Heirs” Defined.

The legal meaning of the word “heirs” is the class of persons upon whom descent is cast by the statute of descent. Fisher v. Malmo, 650 S.W.2d 43, 1983 Tenn. App. LEXIS 556 (Tenn. Ct. App. 1983).

2. Issue of the Decedent.

The “issue of the decedent” are, unless otherwise limited, all the direct, lineal descendants of the deceased. Carter v. Hutchison, 707 S.W.2d 533, 1985 Tenn. App. LEXIS 3444 (Tenn. Ct. App. 1985).

The term “issue of the decedent” differs from the more common reference to “heirs at law,” “heirs,” or “heirs of the body.” Carter v. Hutchison, 707 S.W.2d 533, 1985 Tenn. App. LEXIS 3444 (Tenn. Ct. App. 1985).

Where chapter 7 trustee irrevocably abandoned the debtor's interest in certain real property under 11 U.S.C. § 554(a), and subsequently sought to sell the property pursuant to 11 U.S.C. § 363 to pay administrative expenses, the trustee was precluded from relying on T.C.A. § 31-2-104 to retain the property in the estate. In re Racsko, — B.R. —, 2012 Bankr. LEXIS 3494 (Bankr. E.D. Tenn. July 30, 2012).

3. Child Born Out of Wedlock.

A child born out of wedlock may inherit from and through its father. Decker v. Meriwether, 708 S.W.2d 390, 1985 Tenn. App. LEXIS 3162 (Tenn. Ct. App. 1985).

A child born out of wedlock may inherit from and through its father where paternity is established by clear and convincing proof and where rights of inheritance have not finally vested. Woods v. Fields, 798 S.W.2d 239, 1990 Tenn. App. LEXIS 216 (Tenn. Ct. App. 1990), rehearing denied, 798 S.W.2d 239, 1990 Tenn. App. LEXIS 285 (Tenn. App. 1990).

Plaintiff established paternity by clear and convincing evidence when it was shown that parents of putative father had acknowledged in application filed with Social Security Administration that plaintiff was child of putative father. Woods v. Fields, 798 S.W.2d 239, 1990 Tenn. App. LEXIS 216 (Tenn. Ct. App. 1990), rehearing denied, 798 S.W.2d 239, 1990 Tenn. App. LEXIS 285 (Tenn. App. 1990).

4. Descendants of Wrongdoer.

The general assembly, by enacting T.C.A. § 31-1-106, did not intend to prevent certain of the victim's descendants from receiving a portion of the estate when these descendants are also the children of the person who killed the deceased. Carter v. Hutchison, 707 S.W.2d 533, 1985 Tenn. App. LEXIS 3444 (Tenn. Ct. App. 1985).

5. Illustrative Cases.

Where decedent died intestate as to the excess property not specifically devised in her will, her sister's children inherited a residence not provided for in the will by intestate succession. In re Estate of Milam, 181 S.W.3d 344, 2005 Tenn. App. LEXIS 203 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 819 (Tenn. Oct. 3, 2005).

In a case arising from the distribution of settlement proceeds in which the children of the deceased argued that the settlement proceeds should be distributed in accordance with a document that they propounded was the deceased's will, since that will had not been probated, it had not legal effect. Additionally, since there was no estate opened and no will admitted to probate, the proceeds of the personal injury action passed in accordance with the laws on intestate succession. Timmins v. Lindsey, 310 S.W.3d 834, 2009 Tenn. App. LEXIS 731 (Tenn. Ct. App. Oct. 28, 2009), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 238 (Tenn. Mar. 15, 2010).

When a father established a testamentary trust in his will for the benefit of his son, and the son died thereafter, a trial court erred in ordering a trustee to distribute the corpus of the trust to the father's brother because the father intended that once he survived him and the trust was created, then the son, or the son's beneficiaries, which included the son's estranged wife, would receive the full benefit of the trust, even if the son did not live to the requisite age; the language of the will created a trust for the benefit of the son without providing a mechanism for divesting the son of the trust, once it had been created. First Tenn. Bank, N.A. v. Woodward, 362 S.W.3d 86, 2011 Tenn. App. LEXIS 575 (Tenn. Ct. App. Oct. 25, 2011), appeal denied, First Tenn. Bank N.A. v. Woodward, — S.W.3d —, 2012 Tenn. LEXIS 103 (Tenn. Feb. 16, 2012).

Trial court did not have the authority to approve the distribution of the residue of a self-settled Supplemental Needs Trust established by the co-conservators of a disabled ward to specific charities, when the ward had not executed a will and lacked testamentary capacity, because, after the wards death, any amount remaining in the Supplemental Needs Trust after the wards death and repayment to the State of Tennessee was to be distributed to the ward's estate. In re Wade, 484 S.W.3d 151, 2015 Tenn. App. LEXIS 634 (Tenn. Ct. App. Aug. 5, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 1073 (Tenn. Dec. 14, 2015).

Decedent's mother filed her petition three days following decedent's funeral and less than two weeks following his death, and no evidence showed a want of application by decedent's wife or daughter other than the fact that no petition to open the estate had yet been filed; a delay of two weeks following a death was not sufficient without other proof to show that the spouse and next-of-kin had failed to administer the estate. The mother was not a beneficiary and was nothing more than a stranger to the estate. In re Estate of Edmonds, — S.W.3d —, 2019 Tenn. App. LEXIS 272 (Tenn. Ct. App. May 30, 2019).

Collateral References.

Ancestral character of property which came to intestate by deed. 122 A.L.R. 820.

Ancestral or nonancestral character of property as affected by charge thereon imposed by will. 67 A.L.R. 1164.

Color of title, possession under descent cast as. 2 A.L.R. 1466.

Constitutionality of statute repealing or changing course of descent and distribution of property. 103 A.L.R. 223.

Contest of will, right of heir's assignee. 39 A.L.R.3d 696.

Damages for wrongful death as affected by receipt of share of estate of decedent. 95 A.L.R. 581.

Death, division among beneficiaries of amount awarded by jury upon account of wrongful death. 14 A.L.R. 516.

Descent and distribution from step parents to step children or vice versa. 63 A.L.R.2d 303.

Descent and distribution: Right of inheritance as between kindred of whole and half blood. 47 A.L.R.4th 561.

Descent and distribution to and among cousins. 54 A.L.R.2d 1009.

Descent and distribution to and among uncles and aunts. 55 A.L.R.2d 643.

Descent and distribution to nieces and nephews as per stirpes or per capita. 19 A.L.R.2d 191.

Fee simple conditional, heirs of grantee of estate in, as taking by succession from their ancestor rather than according to statute of distribution. 114 A.L.R. 611.

Gift over to “survivors” of class or group of designated beneficiaries as restricted to surviving members of class or group, or as passing to heirs or representatives of deceased beneficiary. 54 A.L.R.3d 280.

Heirs of deceased child of intestate, statute providing for taking by, of share of deceased child as entitling one other than grandchild of intestate to take. 93 A.L.R. 1511.

Inheritability or descendability of right to contest will, 11 A.L.R.4th 907.

Inheritance by illegitimate from or through mother's ancestors or collateral kindred. 97 A.L.R.2d 1101.

Leasehold interest under leave from deceased spouse, rights as between holder of, and surviving spouse, in respect of improvements made pursuant to provisions of lease. 92 A.L.R. 1382.

Legal status of posthumously conceived child of decedent. 17 A.L.R.6th 593.

Lessee's covenants to repair or to yield up in repair, right of heirs of lessor to enforce. 34 A.L.R. 793.

Massachusetts or business trust. 88 A.L.R.3d 704.

Option to purchase, death of party between giving and exercise of, as affecting rights of heirs of giver. 50 A.L.R. 1322.

Partition suit or partition deed as affecting character of estate as ancestral estate or estate of purchase. 103 A.L.R. 231.

Possibility of reverter. 77 A.L.R. 344.

Real or personal property, proceeds of sale or condemnation of real property of infant or incompetent as, for purpose of descent. 90 A.L.R. 899.

Release to ancestor by heir expectant. 28 A.L.R. 427.

Renunciation of benefits under statute of descent and distribution. 170 A.L.R. 435.

Right of children of adopted child to inherit from adopting parent. 94 A.L.R.2d 1200.

Right of remote kin equally related to the intestate but belonging to different stocks, to distribution per capita rather than by per stirpes where nearer next of kin survive. 140 A.L.R. 1141.

Rights as between designated beneficiary and heirs or legatees of deceased employee covered by private pension or retirement plan. 72 A.L.R.2d 924.

Spouse deceased as ancestor of surviving spouse within statute providing that kindred of the half blood inherit equally with those of the whole blood, unless the inheritance comes to the intestate by descent, devise, or gift of some one of his ancestors. 110 A.L.R. 1014.

Stockholder's statutory added liability as devolving on his heirs at his death. 79 A.L.R. 1550, 96 A.L.R. 1466.

Time of ascertaining persons to take where designated as the “heirs,” “next of kin,” “descendants,” etc., of one other than the testator, trustor, grantor, life tenant, or remainderman. 60 A.L.R.2d 1394.

Who are within terms “relation,” “descendant,” “child,” “brother,” “sister,” etc., describing the legatee or devisee, in the statute providing against lapse upon death of legatee or devisee before testator. 63 A.L.R.2d 1195.

Who is included in term “family” or “household” in statutes relating to family allowance or exemption out of decedent's estate. 88 A.L.R.2d 890.

Who is minor's next of kin for guardianship purposes. 63 A.L.R.3d 813.

Word “grandchild” or “grandchildren” in will as including great-grandchild or great-grandchildren. 51 A.L.R.3d 1250.

31-2-105. Establishment of parent-child relationship to determine succession.

  1. If, for purposes of inheritance under a will or trust or by intestate succession or contract, a relationship of parent and child must be established to determine succession by, through, or from a person:
    1. An adopted person is the child of an adopting parent and not of the natural parents, except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent; and
    2. In cases not covered by subdivision (a)(1), a person born out of wedlock is a child of the mother. That person is also a child of the father, if:
      1. The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or
        1. The paternity is established by adjudication before the death of the father or is established thereafter by clear and convincing proof, but only if an assertion of paternity is made that seeks the adjudication within the earlier of:
          1. The period prescribed in the notice published or posted in accordance with § 30-2-306; or
          2. One (1) year after the father's death;
        2. The paternity established under this subdivision (a)(2)(B) is ineffective to qualify the father or the father's kindred to inherit from or through the child unless the father has openly treated the child as the father's, and has not refused to support the child.
  2. In no event is a parent permitted to inherit through intestate succession or under a will or trust or by contract until all child support arrearages together with any interest owed, at the legal rate of interest computed from the date each payment was due, have been paid in full to the parent ordered to receive support or to the parent's estate if deceased.
  3. Nothing in this section prevents a child from inheriting from a parent through intestate succession.

Acts 1977, ch. 25, § 4; 1978, ch. 763, § 3; T.C.A., § 31-206; Acts 1986, ch. 580, § 5; 1994, ch. 939, § 2; 2017, ch. 290, § 9.

Amendments. The 2017 amendment, in (a), substituted “purposes of inheritance under a will or trust or by intestate succession or contract,” for “purposes of intestate succession,” in the introductory language, and rewrote (a)(2)(B) which read: “The paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof, but the paternity established under this subdivision (a)(2)(B) is ineffective to qualify the father or the father's kindred to inherit from or through the child unless the father has openly treated the child as the father's, and has not refused to support the child.”; rewrote (b) which read: “In no event shall a parent be permitted to inherit through intestate succession until all child support arrearages together with interest thereon at the legal rate of interest computed from the date each payment was due have been paid in full to the parent ordered to receive support or to the parent's estate if deceased.”; and substituted “prevents a child” for “shall be construed to prevent a child” in (c).

Effective Dates. Acts 2017, ch. 290, § 16. July 1, 2017.

Cross-References. Legitimation and paternity, title 36, ch. 2, part 3.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 302, 441, 447, 551, 637, 817, 829.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, V. Children (Neil P. Cohen), 45 Tenn. L. Rev. 451 (1978).

Decedents' Estates— Bilbrey v. Smithers: Limitations on Post-Death Paternity Claims for Purposes of Intestate Succession in Tennessee, 27 Mem. St. U.L. Rev. 517 (1977).

Intestate Succession in Tennessee (Douglas P. Quay), 8 Mem. St. U.L. Rev. 63 (1978).

New-Age Babies and Age-Old Laws: The Need for an Intent-Based Approach in Tennessee to Preserve Parent-Child Succession for Children of Assisted Reproductive Technology (Jane Marie Lewis), 43 U. Mem. L. Rev. 479 (2012).

Survey of Tennessee Property Law, II. Estates in General (Toxey H. Sewell), 46 Tenn. L. Rev. 161 (1979).

NOTES TO DECISIONS

1. Born Out of Wedlock.

Illegitimate children may inherit, under this section, from and through the father where the rights of inheritance have not finally vested; therefore, the phrase “shall vest immediately upon death” in § 31-2-103 is not the final vesting. To hold otherwise would be to bar illegitimate children from establishing paternity after the death of the father. McCluskey v. Weaver, 667 S.W.2d 747, 1982 Tenn. App. LEXIS 458 (Tenn. Ct. App. 1982).

The holding in Allen v. Harvey, 568 S.W.2d 829, 1978 Tenn. LEXIS 614 (Tenn. 1978), that children born out of wedlock may inherit by and through their father where paternity is established by clear and convincing proof, and where rights of inheritance have not finally vested, was not limited to prospective application, but was to be applied retroactively. Marshall v. Marshall, 670 S.W.2d 213, 1984 Tenn. LEXIS 750 (Tenn. 1984).

A child born out of wedlock may inherit from and through its father. Decker v. Meriwether, 708 S.W.2d 390, 1985 Tenn. App. LEXIS 3162 (Tenn. Ct. App. 1985).

Claimant could be found to have been born out of wedlock to her putative father within the meaning of this section, even though her mother was married at the time of her conception and birth, where her mother was married to someone other than her putative father. In re Estate of Armstrong, 859 S.W.2d 323, 1993 Tenn. App. LEXIS 161 (Tenn. Ct. App. 1993), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 223 (Tenn. 1993).

A child born out of wedlock, whose paternity was not adjudicated prior to the death of the father, can establish the right to inherit by intestate succession by asserting that right against the estate of the deceased owner of the property in which an interest is claimed within the time allowed for creditors to file claims against the estate, and by establishing paternity by clear and convincing proof. Bilbrey v. Smithers, 937 S.W.2d 803, 1996 Tenn. LEXIS 527 (Tenn. 1996).

Claimant's evidence that she was not the biological child of her mother's husband, that her mother told her that the intestate decedent was her father, and that her mother had sexual relations with decedent up to the time of his death did not offer clear and convincing proof of paternity. Walton v. Young (In re Estate of Walton), 950 S.W.2d 956, 1997 Tenn. LEXIS 430 (Tenn. 1997).

2. Paternity Suits.

3. —Jurisdiction.

Suit to establish paternity for the purpose of determining intestate succession is properly brought in Chancery and not Juvenile Court. Thompson v. Coates, 627 S.W.2d 376, 1981 Tenn. App. LEXIS 570 (Tenn. Ct. App. 1981).

4. —Limitation of Action.

Ten-year statute of limitations in § 28-3-110 applies to suits to establish paternity for the purpose of determining intestate succession. Thompson v. Coates, 627 S.W.2d 376, 1981 Tenn. App. LEXIS 570 (Tenn. Ct. App. 1981).

Statute of limitation in § 28-3-102 for claims of creditors against a decedent's estate does not apply to suits brought to establish paternity for the purpose of determining intestate succession. Thompson v. Coates, 627 S.W.2d 376, 1981 Tenn. App. LEXIS 570 (Tenn. Ct. App. 1981); McCluskey v. Weaver, 667 S.W.2d 747, 1982 Tenn. App. LEXIS 458 (Tenn. Ct. App. 1982).

Statute of limitation in former § 36-224 (now § 36-2-306) did not apply to suits brought to establish paternity for the purpose of determining intestate succession only. Thompson v. Coates, 627 S.W.2d 376, 1981 Tenn. App. LEXIS 570 (Tenn. Ct. App. 1981).

5. Administration of Estates.

The statutory procedures for establishing heirship in the statutes of descent and distribution relate to estates subject to administration in Tennessee. Ford v. Pace, 672 S.W.2d 219, 1984 Tenn. App. LEXIS 2859 (Tenn. Ct. App. 1984).

The chancery court in Tennessee did not have jurisdiction to determine heirship where the estate was administered in Ohio by an Ohio resident and there was no estate in Tennessee. Ford v. Pace, 672 S.W.2d 219, 1984 Tenn. App. LEXIS 2859 (Tenn. Ct. App. 1984).

No proof was offered on the question of paternity on the alleged heir's claim; therefore, the legitimation issue had to be remanded to the trial court to permit the heir to present her claim pursuant to T.C.A. § 31-2-105 to demonstrate a relationship to the decedent for purposes of establishing intestate succession rights. Lanier v. Rains, 229 S.W.3d 656, 2007 Tenn. LEXIS 583 (Tenn. June 28, 2007).

Collateral References.

Discrimination on basis of illegitimacy as denial of constitutional rights. 38 A.L.R.3d 613.

Inheritance by illegitimate. 24 A.L.R. 570, 83 A.L.R. 1330, 48 A.L.R.2d 759, 60 A.L.R.2d 1182.

Inheritance by illegitimate from mother's legitimate children. 60 A.L.R.2d 1182.

Inheritance by illegitimate from mother's other illegitimate children. 7 A.L.R.3d 677.

Inheritance by illegitimate from or through mother's ancestors or collateral kindred. 97 A.L.R.2d 1101.

Insurance term “children” as used in beneficiary clause of life insurance policy as including illegitimate child. 62 A.L.R.3d 1329.

Kindred of parents, right of child legitimated by marriage of parents to take by inheritance from. 64 A.L.R. 1124.

31-2-106. Representation.

If representation is called for by this title, such representation shall be per stirpes.

Acts 1977, ch. 25, § 2; T.C.A., § 31-205.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 824, 825.

Law Reviews.

Intestate Succession in Tennessee (Douglas P. Quay), 8 Mem. St. U.L. Rev. 63 (1978).

31-2-107. Kindred of half blood.

Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.

Acts 1977, ch. 25, § 2; T.C.A., § 31-208.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 825, 828.

Law Reviews.

Intestate Succession in Tennessee (Douglas P. Quay), 8 Mem. St. U.L. Rev. 63 (1978).

31-2-108. Afterborn heirs.

Relatives of the decedent conceived before the decedent's death but born thereafter inherit as if they had been born in the lifetime of the decedent.

Acts 1977, ch. 25, § 4; T.C.A., § 31-209.

Cross-References. Pretermitted child, § 32-3-103.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 441, 444, 449, 817.

Law Reviews.

New-Age Babies and Age-Old Laws: The Need for an Intent-Based Approach in Tennessee to Preserve Parent-Child Succession for Children of Assisted Reproductive Technology (Jane Marie Lewis), 43 U. Mem. L. Rev. 479 (2012).

31-2-109. [Repealed.]

Compiler's Notes. Former § 31-2-109 (Acts 1883, ch. 250, §§ 1, 2; Code 1932, §§ 7189, 7190; Shan., §§ 3661, 3662; T.C.A. (orig. ed.), §§ 31-401, 31-402), concerning distribution to aliens, was repealed by Acts 1988, ch. 854, § 17.

31-2-110. Escheat.

If there is no taker under this chapter, the intestate estate shall escheat to the state under chapter 6 of this title.

Acts 1977, ch. 25, § 2; T.C.A., § 31-207.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 152.

Law Reviews.

Intestate Succession in Tennessee (Douglas P. Quay), 8 Mem. St. U.L. Rev. 63 (1978).

Chapter 3
Uniform Simultaneous Death Act

31-3-101. Short title.

This chapter shall be known and may be cited as the “Uniform Simultaneous Death Act.”

Acts 1941, ch. 59, § 8; C. Supp. 1950, § 8407.1 (Williams, § 8407.8); T.C.A. (orig. ed.), § 31-501.

Cross-References. Uniform determination of death act, title 68, ch. 3, part 5.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 448, 913, 1001.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-603, 4-604.

Collateral References.

Construction, application, and effect of Uniform Simultaneous Death Act. 39 A.L.R.3d 1332.

31-3-102. Disposition of property where there is no sufficient evidence of survivorship.

Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if the person had survived, except as provided otherwise in this chapter.

Acts 1941, ch. 59, § 1; C. Supp. 1950, § 8407.2 (Williams, § 8407.1); T.C.A. (orig. ed.), § 31-502.

Compiler's Notes. The reference to “this chapter” now includes § 31-3-120, added by Acts 1997, ch. 426, § 16.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 914.

Law Reviews.

Non-Tax Aspects of Estate Planning (Ronald Lee Gilman), 2 Mem. St. U.L. Rev. 41 (1972).

Use of Survivorship Clauses in Wills, 8 Vand. L. Rev. 627 (1955).

NOTES TO DECISIONS

1. In General.

This section neither creates a presumption as to survivorship nor provides a rule of evidence; it is, instead, a rule of substantive law controlling the devolution of property of persons who die in a common disaster, and there is no sufficient evidence that they have died otherwise than simultaneously. Brundige v. Alexander, 547 S.W.2d 232, 1976 Tenn. LEXIS 510 (Tenn. 1976).

2. Wrongful Death Action.

Where husband and wife were killed in plane crash and there was no evidence other than that they died simultaneously, cause of action for wife's wrongful death passed to her next of kin as though she had survived husband. Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436, 1962 Tenn. LEXIS 400 (1962), appeal dismissed, 371 U.S. 21, 83 S. Ct. 120, 9 L. Ed. 2d 96, 1962 U.S. LEXIS 389 (1962), dismissed, International Brotherhood, T. C. W. & H. v. Overnite Transp. Co., 9 L. Ed. 2d 100, 83 S. Ct. 120, 371 U.S. 862, 1962 U.S. LEXIS 2240 (1962).

3. Funeral Expenses of Wife.

This statute does not affect the preexisting law as to the obligation of the husband to pay the funeral expenses of the wife and estate of husband is liable for such funeral expenses even though under this statute they are presumed to have died simultaneously. In re Estate of Deskins, 214 Tenn. 608, 381 S.W.2d 921, 1964 Tenn. LEXIS 512 (1964).

4. Antilapse Statute.

The antilapse statute, § 32-3-105, is applicable in simultaneous death cases where one decedent is the beneficiary of another and should be construed in conjunction with this section. Brundige v. Alexander, 547 S.W.2d 232, 1976 Tenn. LEXIS 510 (Tenn. 1976).

Collateral References.

Common disaster, succession to property as affected by death in, in absence of presumption or proof of survivorship. 43 A.L.R. 1348.

Construction, application and effect of Uniform Simultaneous Death Act. 39 A.L.R.3d 1332.

Time interval contemplated by statute of descent and distribution with reference to death of two persons simultaneously or approximately at same time. 173 A.L.R. 1254.

Who is minor's next of kin for guardianship purposes. 63 A.L.R.3d 813.

31-3-103. Beneficiaries of another person's disposition of property.

Where two (2) or more beneficiaries are designated to take successively (by reason of survivorship) under another person's disposition of property and there is no sufficient evidence that these beneficiaries have died otherwise than simultaneously, the property thus disposed of shall be divided into as many equal portions as there are successive beneficiaries, and these portions shall be distributed respectively to those who would have taken in the event that each designated beneficiary had survived.

Acts 1941, ch. 59, § 2; C. Supp. 1950, § 8407.3 (Williams, § 8407.2); T.C.A. (orig. ed.), § 31-503.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 915.

Law Reviews.

Use of Survivorship Clauses in Wills, 8 Vand. L. Rev. 627 (1955).

Collateral References.

Wills: construction of provision as to which of two or more parties shall be deemed the survivor in case of death simultaneously, in a common disaster, or within a specified period of time. 40 A.L.R.3d 359.

31-3-104. Joint tenants or tenants by the entirety.

Where there is no sufficient evidence that two (2) joint tenants or tenants by the entirety have died otherwise than simultaneously, the property so held shall be distributed one-half (½) as if one had survived and one-half (½) as if the other had survived. If there are more than two (2) joint tenants and all of them have so died, the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants.

Acts 1941, ch. 59, § 3; C. Supp. 1950, § 8407.4 (Williams, § 8407.3); T.C.A. (orig. ed.), § 31-504.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 440, 916.

Law Reviews.

Non-Tax Aspects of Estate Planning (Ronald Lee Gilman), 2 Mem. St. U.L. Rev. 41 (1972).

Use of Survivorship Clauses in Wills, 8 Vand. L. Rev. 627 (1955).

NOTES TO DECISIONS

1. In General.

The usual rule that the interest of a tenant by the entireties cannot be passed by will does not apply where husband and wife died simultaneously and the husband was the beneficiary of the residuary clause in the wife's will. Brundige v. Alexander, 547 S.W.2d 232, 1976 Tenn. LEXIS 510 (Tenn. 1976).

The Uniform Simultaneous Death Act effectively converts a tenancy in the entirety into a tenancy in common. Hicks v. Boshears, 846 S.W.2d 812, 1993 Tenn. LEXIS 27 (Tenn. 1993).

The Tennessee general assembly did not intend for the term “simultaneously” in T.C.A. § 31-3-104 to be defined as meaning “within 120 hours”; instead, the term is properly construed according to its ordinary import, meaning “at the same time”. Heirs of Ellis v. Estate of Ellis, 71 S.W.3d 705, 2002 Tenn. LEXIS 152 (Tenn. 2002).

2. Antilapse Statute.

The antilapse statute, § 32-3-105, is applicable in simultaneous death cases where one decedent is the beneficiary of another and should be construed in conjunction with this section. Brundige v. Alexander, 547 S.W.2d 232, 1976 Tenn. LEXIS 510 (Tenn. 1976).

Collateral References.

Common disaster, death of both tenants in, as affecting devolution of joint estate, community estate, or estate by entireties. 18 A.L.R. 105.

31-3-105. Disposition of insurance proceeds.

Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.

Acts 1941, ch. 59, § 4; C. Supp. 1950, § 8407.5 (Williams, § 8407.4); T.C.A. (orig. ed.), § 31-505.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 917.

31-3-106. Application of chapter.

This chapter shall not apply in the case of wills, living trusts, deeds, or contracts of insurance wherein provision has been made for the distribution of property different from the provisions of this chapter.

Acts 1941, ch. 59, § 6; C. Supp. 1950, § 8407.7 (Williams, § 8407.6); T.C.A. (orig. ed.), § 31-507.

31-3-107. Construction of chapter.

This chapter shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states which enact it.

Acts 1941, ch. 59, § 7; C. Supp. 1950, § 8407.8 (Williams, § 8407.7); T.C.A. (orig. ed.), § 31-508.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 918, 1001.

31-3-108 — 31-3-119. [Reserved.]

  1. An individual who fails to survive the decedent by one hundred twenty (120) hours is deemed to have predeceased the decedent for purposes of the homestead allowance, year's support allowance, exempt property, elective share and intestate succession, and the decedent's heirs are determined accordingly.
  2. A devisee who fails to survive the testator by one hundred twenty (120) hours is deemed to have predeceased the testator, unless the will of the decedent contains language dealing explicitly with simultaneous deaths or deaths in a common disaster or requiring that the devisee survive by a stated period of time in order to take under the will.
  3. If it is not established by clear and convincing evidence that an individual who would otherwise be an heir or devisee survived the decedent by one hundred twenty (120) hours, it is deemed that such individual failed to survive for the required period. This section is not to be applied if its application would result in property of any nature escheating to the state.

Acts 1997, ch. 426, § 16.

Compiler's Notes. Acts 1997, ch. 426, § 26 provides that this section shall apply to estates of decedents dying on or after January 1, 1998, and to all wills, other documents and proceedings related thereto.

NOTES TO DECISIONS

1. Statute Not Applicable to Tenants by the Entirety.

Because T.C.A. § 31-3-120 applies in specific and limited cases, it does not require a tenant by the entirety to survive the spouse by 120 hours in order to obtain fee simple title to property formerly held by the entirety. Heirs of Ellis v. Estate of Ellis, 71 S.W.3d 705, 2002 Tenn. LEXIS 152 (Tenn. 2002).

31-3-120. Individual failing to survive decedent by one hundred twenty (120) hours.

Chapter 4
Elective Share of Surviving Spouse

31-4-101. Right to elective share.

    1. The surviving spouse of an intestate decedent who elects against taking an intestate share, or a surviving spouse who elects against a decedent's will, has a right of election, unless limited by subsection (c), to take an elective-share amount equal to the value of the decedent's net estate as defined in subsection (b), determined by the length of time the surviving spouse and the decedent were married to each other, in accordance with the following schedule:

      If the decedent and the surviving spouse  were married to each other:  The elective-share   percentage is:

      less than 3 years 10% of the net estate

      3 years but less than 6 years 20% of the net estate

      6 years but less than 9 years 30% of the net estate

      9 years or more 40% of the net estate

    2. For purposes of determining the total number of years to be applied to the computation provided in subdivision (a)(1), the number of years persons are married to the same person shall be combined. The years do not have to be consecutive, but may be separated by divorce. All years married shall be counted toward the total number of years for purposes of this section.
  2. The value of the net estate includes all of the decedent's real property, notwithstanding § 31-2-103, and personal property subject to disposition under the decedent's will or the laws of intestate succession, reduced by the following: secured debts to the extent that secured creditors are entitled to realize on the applicable collateral, funeral and administration expenses, and award of exempt property, homestead allowance and year's support allowance. The net estate does not include any assets over which the decedent held a power of appointment, whether exercised or not, unless the decedent exercises the power of appointment to direct the assets to be paid to the decedent's personal representative for administration as part of the decedent's probate estate.
  3. After the elective-share amount has been determined in accordance with subsections (a) and (b), the amount payable to the surviving spouse by the estate shall be reduced by the value of all assets includable in the decedent's gross estate that were transferred, or deemed transferred, to the surviving spouse or that were for the benefit of the surviving spouse, but excluding the homestead allowance, exempt property and year's support allowance. For purposes of this subsection (c), the decedent's gross estate shall be determined by the court in the same manner as for inheritance tax purposes pursuant to title 67, chapter 8, part 3, except that the value of any life estate or trust for the lifetime benefit of the surviving spouse shall be actuarially determined.
  4. The elective-share amount payable to the surviving spouse is exempt from the claims of unsecured creditors of the decedent's estate and, notwithstanding § 30-2-614(b) or (e), shall not be allocated to any United States or any state estate, inheritance or other death transfer tax if the elective share amount qualifies for and is used as a marital deduction in determining the decedent's death tax liability under any applicable estate, inheritance or other death transfer tax statute.

Acts 1977, ch. 25, § 4; T.C.A., § 31-601; Acts 1985, ch. 140, § 28; 1997, ch. 426, § 17; 2001, ch. 400, § 3; 2004, ch. 866, § 2; 2007, ch. 13, §§ 1-3.

Compiler's Notes. Acts 1997, ch. 426, § 26 provided that the amendments to this section by that act shall apply to all estates of decedents dying on or after January 1, 1998 and to all wills, other documents and proceedings related thereto.

Acts 2003, ch. 219, § 1 provided that, notwithstanding any other provision of law to the contrary, the spouse of an intestate decedent may elect to take the intestate share provided pursuant to § 31-2-104(a), or may elect to take an elective-share amount to be determined in accordance with the percentages set out in this section.

Cross-References. Fraudulent conveyance to defeat share, § 31-1-105.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 31, 297, 402, 647, 650, 810, 812, 816.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-1108.

Tennessee Jurisprudence, 8 Tenn. Juris., Curtesy, § 2; 9 Tenn. Juris., Descent and Distribution, §§ 6, 12; 25 Tenn. Juris., Wills, § 166.

Law Reviews.

Avoiding Spousal Claims in Tennessee (Steven A. Goodman), 24 No. 4, Tenn. B.J. 24 (1988).

Conveyances Affecting the Surviving Spouse's Elective Share: Tennessee's Past and a Look to the Future, 57 Tenn. L. Rev. 677 (1990).

Descent and Distribution — Fraudulent Conveyances — Intent to Deprive Surviving Spouse of His or Her Distributive or Elective Share, 50 Tenn. L. Rev. 551 (1983).

Intestate Succession in Tennessee (Douglas P. Quay), 8 Mem. St. U.L. Rev. 63 (1978).

Protection Against Spousal Disinheritance: A Critical Analysis of Tennessee's New Forced Share System, 28 U. Mem. L. Rev. 561 (1998).

Some Whys and Wherefores of Will-Drafting — Revised (Robert L. McMurray), 15 No. 2 Tenn. B.J. 2 (1979).

Survey of Tennessee Property Law, II. Estates in General (Toxey H. Sewell), 46 Tenn. L. Rev. 161 (1979).

Survey of Tennessee Property Law, V. Trusts (Beverly A. Rowlett), 48 Tenn. L. Rev. 95 (1981).

TennCare: Expanded Estate Recovery - Recover at ALL Cost, 45 U. Mem. L. Rev. 711 (2015).

You Can't Take It with You, and Maybe You Can't Even Give It Away: The Case of Elizabeth Baldwin Rice (J. Thomas Oldham), 41 U. Mem. L. Rev. 95 (2010).

NOTES TO DECISIONS

1. Fee Simple.

The legislature intended for the surviving spouse to take a fee simple title in properties comprising the elective share. Merchants & Planters Bank v. Myers, 644 S.W.2d 683, 1982 Tenn. App. LEXIS 438 (Tenn. Ct. App. 1982).

2. Effective Date.

The effective date for determining the dissenting widow's elective share was testator's date of death. Merchants & Planters Bank v. Myers, 644 S.W.2d 683, 1982 Tenn. App. LEXIS 438 (Tenn. Ct. App. 1982).

The surviving spouse should share in any gains or losses experienced by the decedent's estate prior to the distribution of her elective share, including income generated by property owned by the decedent at the time of his death. In re Estate of Jenkins, 8 S.W.3d 277, 1999 Tenn. App. LEXIS 383 (Tenn. Ct. App. 1999), rehearing denied, Estate of Jenkins,—S.W.3d,— 1999 Tenn. App. LEXIS 606 (Tenn. Ct. App. 1999).

3. Net Estate.

With few exceptions, the net estate includes all of decedent's real and personal property subject to disposition under the terms of the decedent's will. When a spouse dissents, the whole estate is taken into account in order that the dissenting spouse may obtain the statutory benefits as though deceased had died intestate. Hamilton Bank Of Upper East Tennessee v. Milligan College, 821 S.W.2d 591, 1991 Tenn. App. LEXIS 583 (Tenn. Ct. App. 1991).

Under the substantially similar former version of T.C.A. § 31-4-101(b), life insurance proceeds that were paid directly to decedent's former wife should not be included in decedent's net estate, considering that the funds were not payable to a testate estate. In re Estate of Jenkins, 8 S.W.3d 277, 1999 Tenn. App. LEXIS 383 (Tenn. Ct. App. 1999), rehearing denied, Estate of Jenkins,—S.W.3d,— 1999 Tenn. App. LEXIS 606 (Tenn. Ct. App. 1999).

In a will dispute, a trial court erred by reducing the amount of the net estate by two debts owed to a decedent's sisters for the purchase of land because they were not secured debts. In re Estate of Jones, 183 S.W.3d 372, 2005 Tenn. App. LEXIS 445 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 1184 (Tenn.2005).

4. Exemptions.

The exemptions referred to in this section are the exemptions found under § 30-2-101, governing the rights of surviving spouse and minor children to specific property. Phipps v. Watts, 781 S.W.2d 863, 1989 Tenn. App. LEXIS 630 (Tenn. Ct. App. 1989).

Even though life insurance under some circumstances may be exempt from the claims of creditors, it is not one of the exemptions referred to in subsection (b). Phipps v. Watts, 781 S.W.2d 863, 1989 Tenn. App. LEXIS 630 (Tenn. Ct. App. 1989).

The unsecured debt exemption becomes relevant only after the surviving spouse's elective share is calculated. In re Estate of Jenkins, 8 S.W.3d 277, 1999 Tenn. App. LEXIS 383 (Tenn. Ct. App. 1999), rehearing denied, Estate of Jenkins,—S.W.3d,— 1999 Tenn. App. LEXIS 606 (Tenn. Ct. App. 1999).

5. Priority of Claim.

Although property owned by decedent at the time of death vested in the beneficiaries, it vested subject to the discharge of claims against the estate, including the surviving spouse's elective share. Gentry v. Gentry, 924 S.W.2d 678, 1996 Tenn. LEXIS 425 (Tenn. 1996).

6. Exhaustion of Elective Share.

Where a widow elected against her husband's will and filed a petition for year's support, exempt property, elective share, and homestead, the widow exhausted her elective share and was entitled to no more compensation under T.C.A. § 31-4-101. Estate of Morris v. Morris, 104 S.W.3d 855, 2002 Tenn. App. LEXIS 755 (Tenn. Ct. App. 2002), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 292 (Tenn. Mar. 17, 2003).

7. Disclosure by Personal Representative.

The provision of § 31-4-103 is mandatory and must be strictly complied with by the representative of an estate or the statutory time for filing a dissent will not bar the widow from making that election. Merriman v. Jones, 620 S.W.2d 88, 1981 Tenn. App. LEXIS 606 (Tenn. Ct. App. 1981).

8. Antenuptial Agreements.

Where husband did not disclose full extent of his estate prior to executing antenuptial agreement, the agreement was ineffective and widow was entitled to take elective share as surviving spouse. Williams v. Williams, 868 S.W.2d 616, 1992 Tenn. App. LEXIS 609 (Tenn. Ct. App. 1992).

Trial court erred in determining that an antenuptial agreement executed by a widow was valid and governed by Florida law, because, despite the generally applicable lex loci rule of contracts, Tennessee law applies under circumstances where the law of another jurisdiction contravenes Tennessee public policy. Enforcing the widow's antenuptial agreement violated Tennessee public policy requiring full disclosure. The court noted that under Florida law, a distinction is made as to antenuptial agreements made in a marriage dissolution versus a probate context; however, in Tennessee, no such distinction is made and full and fair disclosure is required in both contexts, as provided in T.C.A. § 36-3-501. In re Estate of Davis, 184 S.W.3d 231, 2004 Tenn. App. LEXIS 585 (Tenn. Ct. App. 2004), cert. denied, Davis v. Davis, 126 S. Ct. 550, 163 L. Ed. 2d 460, 546 U.S. 977, 2005 U.S. LEXIS 7873 (U.S. Oct. 31, 2005).

9. In Terrorem Clause.

In terrorem clause in will providing that, if beneficiaries attempted to contradict bequests under the will they would lose benefits enuring to them under the will, did not bar surviving spouse from seeking elective share provided by this section. Williams v. Williams, 868 S.W.2d 616, 1992 Tenn. App. LEXIS 609 (Tenn. Ct. App. 1992).

10. Valuation of Elective Share for Marital Deduction.

Assuming that an elective share was determined and funded according to law, it passed from the decedent to the surviving spouse, and “an amount equal to” the full value of the elective share qualified for the marital deduction without being reduced by the amount of decedent's secured debts. Estate of Williams v. Huddleston, 938 S.W.2d 415, 1997 Tenn. LEXIS 43 (Tenn. 1997).

13. Valuation of Elective Share.

When calculating the value of a decedent's estate, for purposes of finding the elective share of the decedent's widow's estate, a court properly excluded insurance proceeds and retirement benefits distributed by beneficiary designations because these assets never became part of the estate and were not subject to the decedent's will. In re Estate of Ladd, — S.W.3d —, 2020 Tenn. App. LEXIS 186 (Tenn. Ct. App. Apr. 24, 2020).

Collateral References.

Acceptance by surviving spouse of provision of will in lieu of dower or other marital rights as giving spouse priority over other legatees and devisees and creditors. 2 A.L.R.2d 607.

Antenuptial or postnuptial settlement and husband's will, what amounts to widow's election as between. 117 A.L.R. 1001.

Codicil as affecting application of statute as to election to take under or against will. 87 A.L.R. 836, 21 A.L.R.2d 821.

Conflict of laws regarding election for or against will, and effect in one jurisdiction of election in another. 69 A.L.R.3d 1081.

Construction, application, and effect of statutes which deny or qualify surviving spouse's right to elect against deceased spouse's will. 48 A.L.R.4th 972.

Does surviving spouse who elects against will take by way of distributive share or by way of inheritance from deceased spouse. 160 A.L.R. 429.

Election against will as affecting right to share in lapsed legacy. 26 A.L.R. 91.

Election as predicable upon initiation of or participation in court proceedings. 166 A.L.R. 316.

Election by spouse to take under or against will as exercisable by agent or personal representative. 83 A.L.R.2d 1077.

Extension of time within which spouse may elect to accept or renounce will. 59 A.L.R.3d 767.

Intestate property or property not validly disposed of by will, direction in will that provision for wife shall be in lieu of other rights or claims as requiring electing as between rights in respect of, and provisions of will. 93 A.L.R. 1384.

Joint, mutual and reciprocal wills, election by spouse to take against. 169 A.L.R. 92.

Law as to election in effect at time of execution of will or at time of testator's death as controlling. 129 A.L.R. 871.

Liability for administration expenses of spouse electing against will. 89 A.L.R.3d 315.

Revocation of election to take under or contrary to will. 81 A.L.R. 740, 71 A.L.R.2d 942.

Right to elect against will as barred by separation agreement. 35 A.L.R. 1491, 34 A.L.R.2d 1020.

Surviving spouse who elects to take against will as entitled to increase or profit of estate accruing after testator's death. 7 A.L.R.4th 989.

Trustee, executor, guardian, or the like, renunciation of will by spouse and election to take under statute as affecting provisions imposing upon spouse personal duty as. 71 A.L.R. 665.

Unsuccessful assertion of claim under or against will as an election for or against it. 33 A.L.R. 601.

Validity of election to take under or against will as affected by fact that it was filed before probate of will or grant of letters. 120 A.L.R. 1270.

Waiver or abandonment of, or estoppel to assert, prior renunciation of, or election to take against, spouse's will. 29 A.L.R.2d 227.

What amounts to election by widow to take under or against will. 82 A.L.R. 1509.

When is widow put to her election between provision made for her by her husband's will, and her dower, homestead, or community right. 22 A.L.R. 437, 68 A.L.R. 507, 171 A.L.R. 649.

Who must bear loss occasioned by election against will. 36 A.L.R.2d 291.

31-4-102. Proceeding for elective share — Time limit.

    1. The surviving spouse may elect to take the spouse's elective share in decedent's property by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within nine (9) months after the date of death.
    2. When the title of the surviving spouse to property devised or bequeathed by the will is involved in litigation pending so that an election to take the elective share cannot be advisedly made, the survivor shall have an additional year from the date of the probate of the will within which to elect; provided, that the court may upon a proper showing further extend the time to meet the exigency of litigation, not concluded, and, that application for allowance of additional time, in either case, be made to the court, for record of its action thereon.
  2. The court shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the decedent's estate whose interests will be adversely affected by the taking of the elective share.
  3. The surviving spouse may withdraw a demand for an elective share at any time before entry of a final determination by the court.
  4. After notice and hearing, the court shall determine the elective share and shall order its distribution and/or vesting to the surviving spouse or the spouse's personal representative. If it appears that a fund or property has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession of the fund or property, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than the person would have been if relief had been secured against all persons subject to contribution.
  5. The order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.

Acts 1976, ch. 529, § 1; 1977, ch. 25, § 3; T.C.A., §§ 31-603, 31-618; Acts 1985, ch. 140, § 29; 2002, ch. 735, § 5; 2007, ch. 13, § 4.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 31, 36, 297, 402, 647, 814-816, 1075.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-1108, 4-1109.

Tennessee Jurisprudence, 9 Tenn. Juris., Descent and Distribution, § 12; 12 Tenn. Juris., Executors and Administrators, §§ 26, 30; 25 Tenn. Juris., Wills, § 166.

Law Reviews.

Conveyances Affecting the Surviving Spouse's Elective Share: Tennessee's Past and a Look to the Future, 57 Tenn. L. Rev. 677 (1990).

Descent and Distribution — Fraudulent Conveyances — Intent to Deprive Surviving Spouse of His or Her Distributive or Elective Share, 50 Tenn. L. Rev. 551 (1983).

Survey of Tennessee Property Law, II. Estates in General (Toxey H. Sewell), 46 Tenn. L. Rev. 161 (1979).

Survey of Tennessee Property Law, V. Trusts (Beverly A. Rowlett), 48 Tenn. L. Rev. 95 (1981).

NOTES TO DECISIONS

1. Disclosure by Personal Representative.

The provision of § 31-4-103 is mandatory and must be strictly complied with by the representative of an estate or the statutory time for filing a dissent will not bar the widow from making that election. Merriman v. Jones, 620 S.W.2d 88, 1981 Tenn. App. LEXIS 606 (Tenn. Ct. App. 1981).

The provision of T.C.A. § 31-4-103 did not apply as an exception to an untimely filing by a surviving spouse where there was no showing that application was made by the spouse for information, that a proposed inventory made available was erroneous or misleading, or that the spouse was denied any information reasonably necessary to his decision of whether to dissent. Lesce v. Cuozzo (In re Estate of Lee-Cuozzo), 931 S.W.2d 230, 1996 Tenn. App. LEXIS 295 (Tenn. Ct. App. 1996), rehearing denied, — S.W.2d —, 1996 Tenn. App. LEXIS 368 (Tenn. Ct. App. June 14, 1996), rehearing denied, In re Estate of Lee-Cuozzo, — S.W.2d —, 1996 Tenn. App. LEXIS 369 (Tenn. Ct. App. June 12, 1996).

2. Costs Incident to Dissent.

The residuary estate bears the whole loss incident to the dissent unless the intent of the testator is otherwise shown. Merchants & Planters Bank v. Myers, 644 S.W.2d 683, 1982 Tenn. App. LEXIS 438 (Tenn. Ct. App. 1982).

3. Waiving Elective Share.

Where by the terms of an agreement the husband expressly waived any right of survivorship in deceased's one-half undivided interest in the property he cannot defeat this agreement by seeking an elective share. In re Estate of Gray, 729 S.W.2d 668, 1987 Tenn. App. LEXIS 2452 (Tenn. Ct. App. 1987).

4. Antenuptial Agreements.

Where husband did not disclose full extent of his estate prior to executing antenuptial agreement, the agreement was ineffective and widow was entitled to take elective share as surviving spouse. Williams v. Williams, 868 S.W.2d 616, 1992 Tenn. App. LEXIS 609 (Tenn. Ct. App. 1992).

5. Timeliness of Petition.

In a will dispute, a widow's petition to elect against a holographic will was timely filed under T.C.A. § 31-4-102(a)(1) because it was filed within nine months of a trial court's decision appointing several surviving children as qualified to probate a testate estate; the time when the children were qualified to probate an intestate estate did not count. In re Estate of Jones, 183 S.W.3d 372, 2005 Tenn. App. LEXIS 445 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 1184 (Tenn.2005).

Chancery court properly granted summary judgment to a decedent's estate dismissing the surviving spouse's claim against the estate for specific property, year's support allowance, elective share, and application for homestead because the parties agreed that she did not petition the court within nine months of the decedent's passing, and the record contained no evidence by affidavit or otherwise establishing that the surviving spouse made the required application for information related to the state and condition of the estate inasmuch as her motion to compel an inventory of the estate was filed well beyond the nine-month period. In re Estate of Kerby, — S.W.3d —, 2019 Tenn. App. LEXIS 313 (Tenn. Ct. App. June 24, 2019).

Collateral References.

Extension of time within which to accept or renounce will. 59 A.L.R.3d 767.

31-4-103. Disclosure by personal representative.

To enable the surviving spouse to act as personal interest may require, the personal representative shall disclose, upon application, the state and condition of the spouse-testator's estate.

Acts 1976, ch. 529, § 1; 1977, ch. 25, §§ 4, 5; T.C.A., §§ 31-604, 31-617.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 813, 1078.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-1108, 4-1110.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, § 166.

Law Reviews.

Conveyances Affecting the Surviving Spouse's Elective Share: Tennessee's Past and a Look to the Future, 57 Tenn. L. Rev. 677 (1990).

Intestate Succession in Tennessee (Douglas P. Quay), 8 Mem. St. U.L. Rev. 63 (1978).

Survey of Tennessee Property Law, V. Trusts (Beverly A. Rowlett), 48 Tenn. L. Rev. 95 (1981).

NOTES TO DECISIONS

1. Section Mandatory.

This section is mandatory and must be strictly complied with by the representative of an estate or the statutory time for filing a dissent will not bar the widow from making that election. Merriman v. Jones, 620 S.W.2d 88, 1981 Tenn. App. LEXIS 606 (Tenn. Ct. App. 1981).

2. Section Deemed Inapplicable.

The provision of T.C.A. § 31-4-103 did not apply as an exception to an untimely filing by a surviving spouse where there was no showing that application was made by the spouse for information, that a proposed inventory made available was erroneous or misleading, or that the spouse was denied any information reasonably necessary to his decision of whether to dissent. Lesce v. Cuozzo (In re Estate of Lee-Cuozzo), 931 S.W.2d 230, 1996 Tenn. App. LEXIS 295 (Tenn. Ct. App. 1996), rehearing denied, — S.W.2d —, 1996 Tenn. App. LEXIS 368 (Tenn. Ct. App. June 14, 1996), rehearing denied, In re Estate of Lee-Cuozzo, — S.W.2d —, 1996 Tenn. App. LEXIS 369 (Tenn. Ct. App. June 12, 1996).

3. Motion to Compel Inventory.

Chancery court properly granted summary judgment to a decedent's estate dismissing the surviving spouse's claim against the estate for specific property, year's support allowance, elective share, and application for homestead because the parties agreed that she did not petition the court within nine months of the decedent's passing, and the record contained no evidence by affidavit or otherwise establishing that the surviving spouse made the required application for information related to the state and condition of the estate inasmuch as her motion to compel an inventory of the estate was filed well beyond the nine-month period. In re Estate of Kerby, — S.W.3d —, 2019 Tenn. App. LEXIS 313 (Tenn. Ct. App. June 24, 2019).

31-4-104. Mental incompetency or minority of surviving spouse.

When the surviving spouse has been adjudged mentally incompetent as described by title 34, chapters 1-3, or is under the age of eighteen (18) years, at the time the will is admitted to probate, upon a petition filed by a guardian, conservator or next friend of either, within one (1) year from probate, or within any extension period so granted, alleging that it would be to the interest of the survivor to take the survivor's elective share, the court having the proper jurisdiction is empowered to appoint a guardian ad litem and hear proof and to declare or not declare an election, and enter judgment accordingly, subject to appeal.

Acts 1976, ch. 529, § 1; 1977, ch. 25, §§ 4, 5; T.C.A., §§ 31-605, 31-619.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 812, 814.

Tennessee Jurisprudence, 25 Tenn. Juris., Wills, § 166.

Law Reviews.

Intestate Succession in Tennessee (Douglas P. Quay), 8 Mem. St. U.L. Rev. 63 (1978).

Survey of Tennessee Property Law, V. Trusts (Beverly A. Rowlett), 48 Tenn. L. Rev. 95 (1981).

Collateral References.

Extension of time within which spouse may elect to accept or renounce will. 59 A.L.R.3d 767.

Factors considered in making election for incompetent to take under or against will. 3 A.L.R.3d 6.

Time within which election must be made for incompetent to take under or against will. 3 A.L.R.3d 119.

31-4-105. Death of surviving spouse.

In the event the surviving spouse dies before the time for electing the elective share expires, the personal representative of the decedent's surviving spouse may, in like manner and every respect, make the election on behalf of the deceased spouse. In like manner, the personal representative may withdraw a demand for an elective share at any time before entry of a final determination by the court.

Acts 1976, ch. 529, § 1; 1977, ch. 25, §§ 4, 5; 1982, ch. 797, § 1; T.C.A., §§ 31-606, 31-620; Acts 2002, ch. 735, § 6; 2014, ch. 829, § 2.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 812, 814, 815.

Tennessee Jurisprudence, 8 Tenn. Juris., Curtesy, § 2; 9 Tenn. Juris., Descent and Distribution, § 6; 25 Tenn. Juris., Wills, § 166.

Law Reviews.

Avoiding Spousal Claims in Tennessee (Steven A. Goodman), 24 No. 4, Tenn. B.J. 24 (1988).

Conveyances Affecting the Surviving Spouse's Elective Share: Tennessee's Past and a Look to the Future, 57 Tenn. L. Rev. 677 (1990).

Survey of Tennessee Property Law, V. Trusts (Beverly A. Rowlett), 48 Tenn. L. Rev. 95 (1981).

Chapter 5
Advancements

31-5-101. Equality in dividing estates.

  1. If an individual dies intestate as to all or a portion of the individual's estate, property the decedent gave during the decedent's lifetime to a child of the decedent is treated as an advancement against the child's intestate share only if:
    1. The decedent declared in a contemporaneous writing, or the child acknowledged in writing, that the gift is an advancement; or
    2. The decedent's contemporaneous writing or the child's written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent's intestate estate.
  2. For purposes of subsection (a), property advanced is valued as of the time the child came into possession or enjoyment of the property or as of the time of the decedent's death, whichever first occurs.
  3. If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent's intestate estate, unless the decedent's contemporaneous writing provides otherwise.
  4. The further provisions of this chapter concerning collation of property shall apply only if there has been an advancement as determined in accordance with subsection (a).

Code 1858, § 2431 (deriv. Acts 1766, ch. 3, § 1; 1784 (Apr.), ch. 22, § 2; 1829, ch. 36, § 1); Shan., § 4174; Code 1932, § 8402; T.C.A. (orig. ed.), § 31-701; Acts 1997, ch. 426, § 18.

Compiler's Notes. Acts 1997, ch. 426, § 26 provided that the amendments to this section by that act shall apply to all estates of decedents dying on or after January 1, 1998 and to all wills, other documents and proceedings related thereto.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 819.

Law Reviews.

Concealing Legislative Reform in the Common-Law Tradition: The Advancements Doctrine and the Uniform Probate Code (Mary L. Fellows), 37 Vand. L. Rev. 671 (1984).

The Doctrine of Advancements, 17 Tenn. L. Rev. 254 (1943).

The Doctrine of Advancements in Tennessee (Stephanie W. Harris), 50 Tenn. L. Rev. 763 (1983).

NOTES TO DECISIONS

1. Intent of Statute.

The provision in this section was the mere announcement of a rule of law of effective existence without the statute, and was not intended to enlarge or restrict the law as to advancements. Morris v. Morris, 56 Tenn. 814, 1872 Tenn. LEXIS 209 (1872); Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884); Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893); Cravens v. Cravens, 56 Tenn. App. 619, 410 S.W.2d 424, 1966 Tenn. App. LEXIS 241 (Tenn. Ct. App. 1966).

This statute was passed by the legislature with a view to the estate owned by deceased at the moment of his death, and upon the idea that no advancements had been made by him in his lifetime. Morris v. Morris, 56 Tenn. 814, 1872 Tenn. LEXIS 209 (1872); Cravens v. Cravens, 56 Tenn. App. 619, 410 S.W.2d 424, 1966 Tenn. App. LEXIS 241 (Tenn. Ct. App. 1966).

2. Evidence of Advancement.

Declarations of the father, made after the execution of a note to him by his son, and not in the son's presence, as to whether the sum furnished was intended as an advancement, are not admissible. And where the note was taken for a sum he paid for land, the father receiving in the face of the note a lien on the land to secure its payment and the note was held until both died, the evidence outlined did not overcome the legal force of the note as a debt. Garner v. Taylor, 58 S.W. 758, 1900 Tenn. Ch. App. LEXIS 51 (1900).

3. Effect of Will.

Equality cannot be defeated at all, except by a will clearly and unmistakably showing the testator's purpose to exclude the operation of these statutory provisions. Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884); Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893).

4. Additional Assets Discovered.

Where at the time of a first collation the distributees were not equalized because the funds of the estate had been used to pay debts, and later a new administrator, appointed for that purpose, realized on a war claim of decedent which had not been deemed an availing asset and therefore had not been disclosed to the court or known to complainants, such complainants are entitled to be equalized out of such claim. Neither the statutes of limitations nor plea of res judicata are sustainable defenses. Daniels v. Pickett, 59 S.W. 148, 1900 Tenn. Ch. App. LEXIS 66 (1900).

5. Gift or Advancement.

Fact that there is a gift and conveyance of the title does not exclude the idea of an advancement, but a gift and the title conveyed is an essential feature of it, and in order to exclude the idea of an advancement there must be shown not only a gift, but a gift with a purpose that the property so given shall go to that child as something over and above the share of the other children of the donor. Laman v. Craig, 30 Tenn. App. 353, 206 S.W.2d 309, 1947 Tenn. App. LEXIS 94 (Tenn. Ct. App. 1947); Cravens v. Cravens, 56 Tenn. App. 619, 410 S.W.2d 424, 1966 Tenn. App. LEXIS 241 (Tenn. Ct. App. 1966).

Collateral References.

Conclusiveness of testator's statement as to amount of debt or advancement to be charged against legacy or devise. 98 A.L.R.2d 273.

31-5-102. Collation of advancements generally.

All advancements, whether by settlement or otherwise, in the lifetime of deceased, or by testamentary provision, shall be collated and brought into contribution in the partition and distribution of the real and personal estate of the deceased; those in real estate, first in the partition of real estate, and those in personal estate in the distribution of the personal estate.

Code 1858, § 2432 (deriv. Acts 1839-1840, ch. 48, § 1); Shan., § 4175; Code 1932, § 8402a; T.C.A. (orig. ed.), § 31-702.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 819, 820.

Law Reviews.

Concealing Legislative Reform in the Common-Law Tradition: The Advancements Doctrine and the Uniform Probate Code (Mary L. Fellows), 37 Vand. L. Rev. 671 (1984).

The Doctrine of Advancements, 17 Tenn. L. Rev. 254 (1943).

The Doctrine of Advancements in Tennessee (Stephanie W. Harris), 50 Tenn. L. Rev. 763 (1983).

Wills, Trusts and Estates (Herein of Future Interests) — 1956 Tennessee Survey (W. J. Bowe), 9 Vand. L. Rev. 1157 (1956).

NOTES TO DECISIONS

1. Effect of Will.

There can be no collation of advancements in cases of total testacy, unless provided for in the will. Bank of Commerce & Trust Co. v. Demarchi, 2 Tenn. Civ. App. (2 Higgins) 301 (1912); Scholze v. Scholze, 2 Tenn. App. 80, 1925 Tenn. App. LEXIS 96 (1925).

2. —Partial Intestacy.

Where testator dies intestate as to a part of his estate, the devisees and legatees, if they are also his heirs and distributees, and wish to share in that part of the estate undisposed of by the testament, will be required to account for, and bring into contribution, any advancements made to them by him, either in his lifetime or by his will. Gold v. Vaughan, 36 Tenn. 245, 1856 Tenn. LEXIS 90 (1856); Perry v. High, 40 Tenn. 349, 1859 Tenn. LEXIS 95 (1859).

3. Advancements Defined.

An advancement is an irrevocable gift by a parent to his child, by anticipation, in whole or in part, of what it is supposed the child will be entitled to out of the estate on the death of the parent making the advancement, and to be taken in account for equalization among his children in the final division and distribution of the estate, where such parent afterwards dies, either wholly or partially intestate, unless the provisions of the will render such equalization impossible. Cawthon v. Coppedge, 31 Tenn. 487, 1852 Tenn. LEXIS 146 (1852); House v. Woodard, 45 Tenn. 196, 1867 Tenn. LEXIS 116 (1867); Yancy v. Yancy, 52 Tenn. 353, 1871 Tenn. LEXIS 268, 13 Am. Rep. 5 (1871); Morris v. Morris, 56 Tenn. 814, 1872 Tenn. LEXIS 209 (1872); Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880); Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884); Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893).

An advancement is an irrevocable gift by a parent who dies afterwards intestate of the whole or a part of what it is supposed the child will be entitled to on the death of the parent making the advancement. Laman v. Craig, 30 Tenn. App. 353, 206 S.W.2d 309, 1947 Tenn. App. LEXIS 94 (Tenn. Ct. App. 1947).

4. Advancement or Gift — Determination.

Money laid out by a father in land, the title of which is taken in the name of an infant child, or land procured to be conveyed to his child (infant or adult), and paid for by a parent, is an advancement to such child. Hamilton v. Bradley, 6 Tenn. 127, 1818 Tenn. LEXIS 48 (1818); Thompson v. Thompson, 9 Tenn. 96, 9 Tenn. 97, 1826 Tenn. LEXIS 12 (1826); Haywood's Heirs v. Moore, 21 Tenn. 584, 1841 Tenn. LEXIS 74 (1841); Dudley v. Bosworth, 29 Tenn. 9, 1848 Tenn. LEXIS 31 (1848); McCoy v. Pearce, 1 Shan. 87 (1858).

The money or property given to a child is, prima facie, an advancement, and must be accounted for in the distribution and partition of the giver's estate; yet it may be shown to have been a mere gift, but the burden of proof is upon him who claims it as a gift to show that it was not intended as an advancement. Morris v. Morris, 56 Tenn. 814, 1872 Tenn. LEXIS 209 (1872); Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884); Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893).

A contingent provision for a child in a marriage settlement is an advancement pro tanto. Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880).

Money or property given to a child is considered as an advancement where not shown to be a gift. Chadwell v. Chadwell, 9 Tenn. App. 181, — S.W. —, 1927 Tenn. App. LEXIS 227 (Tenn. Ct. App. 1927).

Where mother's joinder in execution of father's deed to his daughter was for purpose of releasing mother's homestead rights, no advancement in favor of mother's estate could be charged to daughter by reason of such joinder in absence of agreement by which daughter would be bound in equity and good conscience to permit herself to be so charged. Coward v. Hamblen, 21 Tenn. App. 239, 108 S.W.2d 885, 1937 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1937).

Deed which conveyed property to grantor's wife for life with a reversion to the grantor if he should outlive her and with a provision that if she should not outlive her the property should go to a named son of the grantor and his heirs in fee simple constituted a valid conveyance to the son where the grantor predeceased the wife and not an advancement since an advancement is a perfect and irrevocable gift while the interest of the son was only contingent at the time the deed was executed. Thornton v. Thornton, 39 Tenn. App. 225, 282 S.W.2d 361, 1955 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1955).

Money or property given to a child is prima facie an advancement yet may be shown to have been a gift, but the burden of proof is upon one who claims as a gift to show that it was not intended as a gift. Cravens v. Cravens, 56 Tenn. App. 619, 410 S.W.2d 424, 1966 Tenn. App. LEXIS 241 (Tenn. Ct. App. 1966).

5. —Gift to Another for Use of Child.

A gift to grandchildren, reserving to their mother, the donor's daughter, the use, during her life of the property so given, as a means of enabling her the better to support, raise, and educate her children, the donees, is not an advancement to the daughter, with which she will be chargeable in the distribution of the donor's estate. Cawthon v. Coppedge, 31 Tenn. 487, 1852 Tenn. LEXIS 146 (1852); Brown v. Dortch, 59 Tenn. 740, 1874 Tenn. LEXIS 44 (1874); Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880).

The father cannot make an advancement to his child by a gift to somebody else, not even by gift to the child of his child, merely because he chooses to say that it is intended as a gift of what he supposes would be the share of his child in his estate at his death. Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880).

6. —Provisions of Will.

A direction in a will that the testator's estate should be reduced to money, and the same divided as follows: To testator's daughter one half of the money, less the present value of the slaves previously given her; to his three grandchildren, the children of a deceased daughter, the balance of the money, etc., must not be literally interpreted, but the letter must yield to the spirit of the instrument, so as to carry out the evident intention of equality. The value of the slaves must be regarded as an advancement, and collated as such. Campbell v. Watkins, 1 Shan. 121 (1859); Hadley v. Hadley, 100 Tenn. 446, 45 S.W. 342, 1897 Tenn. LEXIS 135 (1897).

Under a will bequeathing $10,000 to a daughter “in addition to the advancement heretofore made her,” money paid to her by her husband as the maker of a note held by the testator, who directed him to pay the amount of the note to her, was not an advancement where such direction was made prior to the execution of the will. Gibson v. Parkey, 142 Tenn. 99, 217 S.W. 647, 1919 Tenn. LEXIS 39 (1919).

7. Presumptions.

Where a parent pays a debt against his child whether he is liable thereon as surety, indorser or otherwise, or not, and no note or other obligation therefor is taken from the child, the law, in the absence of proof to the contrary, presumes such payment to be an advancement to the child. Johnson v. Hoyle, 40 Tenn. 56, 1859 Tenn. LEXIS 18 (1859); Mann v. Mann, 59 Tenn. 245, 1873 Tenn. LEXIS 50 (1873); Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880); Steele v. Friarson, 85 Tenn. 430, 3 S.W. 649, 1886 Tenn. LEXIS 68 (1887).

The language of § 31-5-101 would seem to require that, even in a strong case, there be very clear and weighty evidence to overturn the presumption of our law, and the evident policy and purpose of absolute equality underlying it. Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884); Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893).

It is presumed that a gift by testator to legatee after execution of will was intended as ademption of legacy in will, where it set forth: “Whatever amount I do pay will be credited,” etc., and clear and convincing proof required to rebut the presumption. Gibson v. Buis, 142 Tenn. 133, 218 S.W. 220, 1919 Tenn. LEXIS 43 (1919).

Where father, as surety on his son's note, paid it and preserved the note among his other papers, in absence of proof of father's intention, this was presumed to be an advancement to son. Huffman v. Ramey, 157 Tenn. 183, 15 S.W.2d 746, 1927 Tenn. LEXIS 64 (1928).

Since the statute creates a presumption that any transfer or conveyance of property by a parent to child is to be treated as an advancement, the burden of proof is on such child to show by competent evidence that the transfer or conveyance made by a parent to him is not to be so treated. Thornton v. Thornton, 39 Tenn. App. 225, 282 S.W.2d 361, 1955 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1955).

Where deed from parents to daughter contained provision which would make the gift of the property an advancement to the daughter against her future inheritance from the parents, also contained provision that in the event the daughter should die without issue, the property would revert back to the parents to be redistributed to their legal heirs, the provision for reverter would be effective only if the daughter predeceased the parents, and where parents died first it would be assumed that daughter either made an accounting or the accounting was waived. Collins v. Smithson, 585 S.W.2d 598, 1979 Tenn. LEXIS 483 (Tenn. 1979).

8. Evidence of Advancements.

Notes given by children to the father for property were debts, and not advancements, though the father declared that he did not intend to collect them, but that he held them as receipts to show the amounts they had received of his estate, where he reserved to himself the right, if his necessities required it, to collect them, or such parts thereof as he might need. House v. Woodard, 45 Tenn. 196, 1867 Tenn. LEXIS 116 (1867).

In a sale and conveyance of land by a father to a son, the difference between the actual value and the price paid will not be treated as an advancement merely because of inadequacy of price. Merriman v. Lacefield, 51 Tenn. 209, 1871 Tenn. LEXIS 150 (1871).

If title is not perfected by adverse possession under a parol gift of land, it will not be an advancement, except as to rents. Yancy v. Yancy, 52 Tenn. 353, 1871 Tenn. LEXIS 268, 13 Am. Rep. 5 (1871); Mason v. Holman, 78 Tenn. 315, 1882 Tenn. LEXIS 183 (1882); MOORE v. BURROW, 89 Tenn. 101, 17 S.W. 1035, 1890 Tenn. LEXIS 25 (1890).

Where the only evidence to support advancement is that a father, who had furnished the son $500, taking his note therefor and retaining a lien on the land purchased by the son with the funds, had made advancements of equal amounts to his other children, and that he had never taken steps to collect the note, the same is insufficient to support a finding that there was an advancement. Garner v. Taylor, 58 S.W. 758, 1900 Tenn. Ch. App. LEXIS 51 (1900).

Evidence to effect that decedent indicated through actions and conversations on and about the time of transfers that he was attempting to achieve equality among children and to effect that other children had received substantial gifts was sufficient to establish that transfers were gifts and not advancements. Cravens v. Cravens, 56 Tenn. App. 619, 410 S.W.2d 424, 1966 Tenn. App. LEXIS 241 (Tenn. Ct. App. 1966).

9. —Intent.

In general, where a parent takes and holds the notes or other obligations of his child for the indebtedness contracted and owing by the child to the father, they are evidences of debt; and, in the absence of proof to the contrary, they are not to be regarded as advancements. Vaden v. Hance, 38 Tenn. 300, 1858 Tenn. LEXIS 178 (1858); Johnson v. Hoyle, 40 Tenn. 56, 1859 Tenn. LEXIS 18 (1859); House v. Woodard, 45 Tenn. 196, 1867 Tenn. LEXIS 116 (1867); Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880); Williams v. Williams, 83 Tenn. 438, 1885 Tenn. LEXIS 65 (1885); Steele v. Friarson, 85 Tenn. 430, 3 S.W. 649, 1886 Tenn. LEXIS 68 (1887).

Donor's statement at the time of the act is competent to prove the intention to make an advancement of his son's purchase-money note to him. Jennings v. Jennings, 49 Tenn. 283, 1871 Tenn. LEXIS 6 (1871); Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880).

Where a father conveyed to his son a tract of land for a recited consideration, and took the son's note for the difference between such and the actual value agreed upon by them, but declared that he took the note only as a sham, and that he wanted nothing more, the transaction was held to be an advancement, and the note was held as evidence of the amount of the advancement. Jennings v. Jennings, 49 Tenn. 283, 1871 Tenn. LEXIS 6 (1871).

The donor's intention must be determined from his conduct and conversation at or about the time of the gift. The agreement must depend on the circumstances at the time, and cannot be made better or worse by subsequent facts. Morris v. Morris, 56 Tenn. 814, 1872 Tenn. LEXIS 209 (1872); Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880); Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884). See House v. Woodard, 45 Tenn. 196, 1867 Tenn. LEXIS 116 (1867); Jennings v. Jennings, 49 Tenn. 283, 1871 Tenn. LEXIS 6 (1871); Cravens v. Cravens, 56 Tenn. App. 619, 410 S.W.2d 424, 1966 Tenn. App. LEXIS 241 (Tenn. Ct. App. 1966).

Money paid by a father as a surety for a son-in-law is not chargeable to the daughter as an advancement, nor to their child after her death. Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880).

The mere fact that a father has, for a nominal consideration, conveyed land to his son-in-law will not, without more, be sufficient to charge the daughter, or, if she be dead, her child, with the value of the land as an advancement, especially where it is not shown that the father intended the conveyance of the land as an advancement to his daughter, or that she agreed to accept it as such. Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880).

To constitute an advancement, there must be an intention on the part of the parent to make an advancement, and the gift by advancement must be made to his child, or to a third person, with the consent of such child. Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880).

To make an advancement, the intention and gift must concur. The gift alone will not suffice where the intention is clearly to the contrary. Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880).

The testimony of parties as to statements made by decedent touching advancements is competent. Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884).

The provision in a parent's deed that the property therein conveyed to his son in trust for his son's then wife, and their issue, shall not be regarded as an advancement is good. Aden v. Aden, 84 Tenn. 453, 1886 Tenn. LEXIS 124 (1886); Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893).

Statements by decedent to her daughter, testified to by draftsman of a deed, was competent on point whether debtor and creditor relation existed, rather than advancement. Bank of Commerce & Trust Co. v. Pope, 20 Tenn. App. 652, 103 S.W.2d 586, 1936 Tenn. App. LEXIS 56 (Tenn. Ct. App. 1936).

10. —Subsequent Declarations.

Whether a transaction is a resulting trust or an advancement depends upon its character in its inception, and it cannot be changed by subsequent acts or declarations, especially, if they be unsatisfactory and equivocal. Dudley v. Bosworth, 29 Tenn. 9, 1848 Tenn. LEXIS 31 (1848).

Subsequent declarations of the parent are inadmissible to create or destroy an advancement, to the prejudice of the absent child. Merriman v. Lacefield, 51 Tenn. 209, 1871 Tenn. LEXIS 150 (1871); Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880); Mason v. Holman, 78 Tenn. 315, 1882 Tenn. LEXIS 183 (1882).

Subsequent declarations are inadmissible, it seems, to declare a sale to be an advancement. Merriman v. Lacefield, 51 Tenn. 209, 1871 Tenn. LEXIS 150 (1871); Rains v. Hays, 2 Tenn. Ch. 669 (1876), aff'd, 74 Tenn. 303, 1880 Tenn. LEXIS 252, 40 Am. Rep. 39 (1880); Mason v. Holman, 78 Tenn. 315, 1882 Tenn. LEXIS 183 (1882).

11. Valuation.

In distributing the surplus of an intestate's estate, advancements should be estimated at their actual value when made, where the value was not fixed at that time, and such surplus at its value at the intestate's death. If the value was fixed at the time of the advancement, such value will control. Burton v. Dickinson, 11 Tenn. 112, 1832 Tenn. LEXIS 27 (1832); House v. Woodard, 45 Tenn. 196, 1867 Tenn. LEXIS 116 (1867); Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884); Williams v. Williams, 83 Tenn. 438, 1885 Tenn. LEXIS 65 (1885); Roberson v. Nail, 85 Tenn. 124, 2 S.W. 19, 1886 Tenn. LEXIS 21 (1886); MOORE v. BURROW, 89 Tenn. 101, 17 S.W. 1035, 1890 Tenn. LEXIS 25 (1890); Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893).

Where advancements have been made, the net value of the estate for distribution and descent as it exists at the death of the decedent, with the value of the advancements when they were made, constitutes the fund for division, and the children (those advanced and those not advanced) are entitled to share in the subsequent increase and profits accruing to the estate in the proportion in which they were entitled to share in the corpus of the estate as it existed at the decedent's death, and after deducting their respective advancements. If a will fixes the value of the advancement, that value will prevail. Burton v. Dickinson, 11 Tenn. 112, 1832 Tenn. LEXIS 27 (1832); House v. Woodard, 45 Tenn. 196, 1867 Tenn. LEXIS 116 (1867); Andrews v. Andrews, 54 Tenn. 234, 1872 Tenn. LEXIS 42 (1872); McNairy v. McNairy, 1 Shan. 329 (1874); Rice v. Steger, 3 Cooper's Tenn. Ch. 328 (1877); Granberry v. Jordan, 3 Shan. 267 (1879); Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884); Williams v. Williams, 83 Tenn. 438, 1885 Tenn. LEXIS 65 (1885).

Life estate is to be valued as such, unless a contrary intention is manifest. Cawthon v. Coppedge, 31 Tenn. 487, 1852 Tenn. LEXIS 146 (1852); Brown v. Dortch, 59 Tenn. 740, 1874 Tenn. LEXIS 44 (1874).

If a child is placed in possession and he holds adversely for a period of seven years, the land becomes his to the extent of his inclosures. In such case, he is to be charged with the land as an advancement at its value, or the value put upon it, at the time of the parol gift and the taking of the possession under it, and not at its value when the gift was perfected by the statutes of limitations. Haynes v. Jones, 39 Tenn. 372, 1859 Tenn. LEXIS 228 (1859); Keys v. Keys, 58 Tenn. 425, 1872 Tenn. LEXIS 280 (1872); O'Neal v. Breecheen, 64 Tenn. 604, 1875 Tenn. LEXIS 137 (1875); Jordan v. Maney, 78 Tenn. 135, 1882 Tenn. LEXIS 154 (1882); MOORE v. BURROW, 89 Tenn. 101, 17 S.W. 1035, 1890 Tenn. LEXIS 25 (1890); Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893); Bailey ex rel. State v. Henry, 125 Tenn. 390, 143 S.W. 1124, 1911 Tenn. LEXIS 35 (Tenn. Dec. 1911).

If a father puts his child in possession of land under a parol gift, and afterwards makes a deed of conveyance of the land to such child, the advancement must be treated as made when the possession was given under parol gift, and the child must be charged with the value at that time, and not when the deed was made. MOORE v. BURROW, 89 Tenn. 101, 17 S.W. 1035, 1890 Tenn. LEXIS 25 (1890); Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893).

Where an advancement is made by life insurance policies, such insurance must be valued at the net amount due and realized from the policies after the death of the insured father, and at the time so received. Cazassa v. Cazassa, 92 Tenn. 573, 22 S.W. 560, 1893 Tenn. LEXIS 14, 36 Am. St. Rep. 112, 20 L.R.A. 178 (1893).

Even if transfer of certain notes had been advancements the recipients should not have been charged with the full value of the notes or interest on the entire value where they agreed to decedent's request that decedent receive income therefrom during his lifetime and recipients had collected only a portion of the principal. Cravens v. Cravens, 56 Tenn. App. 619, 410 S.W.2d 424, 1966 Tenn. App. LEXIS 241 (Tenn. Ct. App. 1966).

12. Interest.

Interest is not chargeable upon advancements previous to the death of the testate or intestate parent making the same. Cawthon v. Coppedge, 31 Tenn. 487, 1852 Tenn. LEXIS 146 (1852); Morris v. Morris, 56 Tenn. 814, 1872 Tenn. LEXIS 209 (1872); Brown v. Dortch, 59 Tenn. 740, 1874 Tenn. LEXIS 44 (1874); Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884).

As a general rule interest should be computed on all money advancements and on the value of all property advancements, from the death of the parent making the same. McNairy v. McNairy, 1 Shan. 329 (1874); Johnson v. Patterson, 81 Tenn. 626, 1884 Tenn. LEXIS 81 (1884); Williams v. Williams, 83 Tenn. 438, 1885 Tenn. LEXIS 65 (1885); Roberson v. Nail, 85 Tenn. 124, 2 S.W. 19, 1886 Tenn. LEXIS 21 (1886); Steele v. Friarson, 85 Tenn. 430, 3 S.W. 649, 1886 Tenn. LEXIS 68 (1887); MOORE v. BURROW, 89 Tenn. 101, 17 S.W. 1035, 1890 Tenn. LEXIS 25 (1890).

Where there is no profit or interest accumulated on the corpus for division, because it has all been absorbed in paying the annuity due the widow charged upon the testator's estate for her support during life, no interest will be chargeable upon the advancements. McNairy v. McNairy, 1 Shan. 329 (1874).

After the death of the parent, or after the time for division fixed by the will in cases of testacy, the same rate of interest is chargeable upon the advancements as the rate of interest or profit earned upon the corpus of the estate for division. Each one should receive the profits that his share in the corpus has earned or accumulated, estimating the profits as having been accumulated upon the whole corpus. McNairy v. McNairy, 1 Shan. 329 (1874); Rice v. Steger, 3 Cooper's Tenn. Ch. 328 (1877); Granberry v. Jordan, 3 Shan. 267 (1879); Williams v. Williams, 83 Tenn. 438, 1885 Tenn. LEXIS 65 (1885).

Where, by a consent decree, the profits are paid out in compromise of adverse claims for the benefit of all the heirs and distributees, or the devisees and legatees, equally, a division of the balance of the fund, with a collation of the advancements without interest, equalizes all the parties. Granberry v. Jordan, 3 Shan. 267 (1879).

A stipulation in a receipt by a married daughter, for an advancement from her father, that it shall bear interest from a particular date, is not binding because an advancement is not a contract, but a gift with the intention that it shall be taken as an advancement. Roberson v. Nail, 85 Tenn. 124, 2 S.W. 19, 1886 Tenn. LEXIS 21 (1886).

The court will allow the interest, though the report of the clerk and master was not excepted to, on the ground that interest was not reported on the advancement, because advancements, as a matter of law, bear interest from the death of the parent, where interest is properly chargeable thereon. Steele v. Friarson, 85 Tenn. 430, 3 S.W. 649, 1886 Tenn. LEXIS 68 (1887).

13. Rents.

The rent of land placed by a father in possession of his son, for the use of his son and his children, and not given to the son because the father feared he would waste it, must be accounted for as an advancement to the son; but rents accrued since the death of the father are not to be included in the account, for as to them, the occupier of the land is liable to its new owner, the heirs. Robinson v. Robinson, 23 Tenn. 392, 1843 Tenn. LEXIS 125 (1843). See Yancy v. Yancy, 52 Tenn. 353, 1871 Tenn. LEXIS 268, 13 Am. Rep. 5 (1871); Mason v. Holman, 78 Tenn. 315, 1882 Tenn. LEXIS 183 (1882); MOORE v. BURROW, 89 Tenn. 101, 17 S.W. 1035, 1890 Tenn. LEXIS 25 (1890).

Where the collation or adjustment of advancements was omitted in the distribution of the proceeds of a sale for partition, the same may be made in the distribution of the rents. Evans v. Evans, 48 Tenn. 577, 1870 Tenn. LEXIS 115 (1870).

14. Rights of Widow.

The widow of an intestate is not entitled to have advancements made by him in his lifetime to his children collated, so as to form one mass of the advancements and the residue of the estate to be divided between her and the children. She is only entitled to a share of what remains after deducting the advancements, and exclusive of them. Brunson v. Brunson, 19 Tenn. 630, 1838 Tenn. LEXIS 99 (1838); Richards v. Richards, 30 Tenn. 429, 1850 Tenn. LEXIS 144 (1850), superseded by statute as stated in, Warren v. Compton, 626 S.W.2d 12, 1981 Tenn. App. LEXIS 558 (Tenn. Ct. App. 1981); De Vault v. De Vault, 48 S.W. 361, 1898 Tenn. Ch. App. LEXIS 90 (1898).

If the husband gives his personalty to his children, whether as an advancement or an absolute gift, for the fraudulent purpose of excluding his widow from any share therein, she is without remedy. Richards v. Richards, 30 Tenn. 429, 1850 Tenn. LEXIS 144 (1850), superseded by statute as stated in, Warren v. Compton, 626 S.W.2d 12, 1981 Tenn. App. LEXIS 558 (Tenn. Ct. App. 1981).

Unless a contrary intention appears in the will, the widow of intestate is not entitled to have advancements collated. Brown v. Dortch, 59 Tenn. 740, 1874 Tenn. LEXIS 44 (1874).

Receipt in full of interest in estate, as to widow, comes within the meaning of “advancement.” De Vault v. De Vault, 48 S.W. 361, 1898 Tenn. Ch. App. LEXIS 90 (1898).

15. Rights of Grandchildren.

Advancement to son of deceased acknowledged by son and his wife as “being in full and final settlement and adjustment of any and all right, title, claim or interest” in property of deceased barred children of son from share in estate of deceased. Anderson v. Forbes, 169 Tenn. 223, 84 S.W.2d 104, 1935 Tenn. LEXIS 35 (1935).

16. Purchaser of Expectancy.

The purchaser of the estate in expectancy of an heir apparent, or the purchaser of the heir and distributee after it has vested in him, takes it subject to advancements made to the heir and distributee, but takes the realty, though not personalty, free from debts due from the heir to the ancestor's estate. Steele v. Friarson, 85 Tenn. 430, 3 S.W. 649, 1886 Tenn. LEXIS 68 (1887); Irvin v. Palmer, 91 Tenn. 463, 19 S.W. 326, 1892 Tenn. LEXIS 15, 30 Am. St. Rep. 893 (1892).

17. Creditors.

Advancements are to be collated before an attaching creditor of an heir or distributee, a purchaser from him, can have satisfaction of his debt. The interest of the heir or distributee is what is due him after charging him with all advancements, and it is this interest only that a creditor can reach and subject, or that a purchaser can hold. Johnson v. Hoyle, 40 Tenn. 56, 1859 Tenn. LEXIS 18 (1859); Nashville v. Potomac Ins. Co., 61 Tenn. 296, 1872 Tenn. LEXIS 375 (1872); Mann v. Mann, 59 Tenn. 245, 1873 Tenn. LEXIS 50 (1873); Steele v. Friarson, 85 Tenn. 430, 3 S.W. 649, 1886 Tenn. LEXIS 68 (1887); Irvin v. Palmer, 91 Tenn. 463, 19 S.W. 326, 1892 Tenn. LEXIS 15, 30 Am. St. Rep. 893 (1892).

18. Advancements in Another State.

Advancements made in another state by an intestate living and dying there, where his estate is administered, will not be collated here, even though the property in such other state is insufficient to equalize the advanced and unadvanced children. Parkes v. Gilbert, 60 Tenn. 97, 1873 Tenn. LEXIS 417 (1873).

Collateral References.

Account, items in form of, as advancements. 49 A.L.R. 574.

Ademption of bequest of proceeds of property. 45 A.L.R.3d 10.

Agreement that one's share in estate shall be equal to share of certain other person as affected by gift to latter during lifetime of decedent. 5 A.L.R. 1436.

Grandchild's interest in grandparent's estate as affected by advancement to child. 68 A.L.R. 410.

Intent as a factor in determining whether there is an advancement. 26 A.L.R. 1089.

Parol or extrinsic evidence to show testator's intention as to advancements. 94 A.L.R. 183.

Pretermitted child or grandchild entitled by statute to share which he would have received if testator had died intestate, applicability of doctrine of advancement in case of. 88 A.L.R. 375.

Release to ancestor by heir expectant. 28 A.L.R. 427.

Satisfaction or ademption of general legacy by inter vivos gift, transfer or payment to the legatee or another. 26 A.L.R.2d 9.

Testate succession applicability of doctrine of advancements to. 32 A.L.R. 730.

Valuation of property for purposes of advancement. 26 A.L.R. 1178.

Widow's distributive share as affected by advancements to others. 76 A.L.R. 1420.

Will charging distributee's share with advancement to or debt owed by him as invoking doctrine of hotchpot. 165 A.L.R. 899.

Will, doctrine of “advancements” as applicable to transfer by testator to devisee or legatee after execution of. 142 A.L.R. 524.

31-5-103. Collation of excess over share.

Should the value of the advancements in real estate exceed the child's share, the overplus shall be collated and brought into contribution in the distribution of the personal estate, and should the value of the advancements in personal estate exceed the share of the child in the personal estate, then the excess shall be brought into contribution in the partition of the real estate.

Code 1858, § 2433 (deriv. Acts 1839-1840, ch. 48, § 2); Shan., § 4176; Code 1932, § 8403; T.C.A. (orig. ed.), § 31-703.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 819, 823.

Collateral References.

Recovery of excess of advancement over distributable share in estate. 46 A.L.R. 1428.

31-5-104. Collation of property settled on child under power or trust.

Where a power or trust is granted to a parent to bestow property conveyed or settled by the instrument creating the power or trust, in favor of any one or more of the children of the parent, any property given under the power or trust to a child shall be collated and brought into contribution by the child claiming a share in the distribution of the property of the parent.

Code 1858, § 2434 (deriv. Acts 1839-1840, ch. 48, § 3); Shan., § 4177; Code 1932, § 8404; T.C.A. (orig. ed.), § 31-704.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 819, 820.

31-5-105. Jurisdiction of distribution.

All courts having jurisdiction to partition real estate and order distribution among heirs and distributees, shall have full power to cause accounts to be taken and valuations of lands to be made, so as to enforce equality of partition and distribution.

Code 1858, § 2435 (deriv. Acts 1829, ch. 36, § 2); Shan., § 4178; Code 1932, § 8405; T.C.A. (orig. ed.), § 31-705.

Cross-References. Partition generally, title 29, ch. 27.

Partition or sale of property in chancery court, § 16-11-111.

Probate jurisdiction transferred from county court to chancery court, title 16, ch. 16, part 2.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 823.

NOTES TO DECISIONS

1. County Court (now Chancery Court).

As the county court (now chancery court) has jurisdiction to partition real estate and order distribution among heirs and distributees, it would seem that this section confers upon the county court (now chancery court) jurisdiction to equalize advancements, whenever it has jurisdiction to partition real estate and order distribution among heirs and distributees. However, in Parkes v. Gilbert, 60 Tenn. 97, 1873 Tenn. LEXIS 417 (1873), this jurisdiction is questioned. See Bowers v. Lester, 49 Tenn. 456, 1871 Tenn. LEXIS 32 (1871); Dean v. Snelling, 49 Tenn. 484, 1871 Tenn. LEXIS 35 (1871); Stewart v. Glenn, 50 Tenn. 581, 1871 Tenn. LEXIS 116 (1871).

Chapter 6
Escheat of Decedents' Estates

31-6-101. Escheat generally.

  1. If a decedent, whether or not domiciled in this state, leaves no one to take the decedent's estate or any portion of the estate by the decedent's will and no one other than a government or governmental subdivision or agency to take the decedent's estate or a portion of the estate by intestate succession, under the laws of this state or any other jurisdiction, the estate escheats as of the time of the decedent's death in accordance with this chapter.
  2. Property passing to the state under this chapter, whether held by the state or its officers, is subject to the same liens, charges and trusts to which it would have been subject if it had passed by will or intestate succession.

Acts 1979, ch. 226, § 1; T.C.A., § 31-801.

Cross-References. Uniform Disposition of Unclaimed Property Act, title 66, ch. 29.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 3, 831, 869, 1126.

Law Reviews.

Selected Tennessee Legislation of 1986, 54 Tenn. L. Rev. 457 (1987).

31-6-102. Escheat of real property.

Real property located in this state escheats to this state in accordance with § 31-6-101.

Acts 1979, ch. 226, § 2; T.C.A., § 31-802.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 831.

31-6-103. Escheat of tangible personal property customarily kept in this state.

All tangible personal property owned by the decedent, wherever located at the decedent's death, that was customarily kept in this state prior to the decedent's death, escheats to this state in accordance with § 31-6-101.

Acts 1979, ch. 226, § 3; T.C.A., § 31-803.

Cross-References. Intervention, Tenn. R. Civ. P. 24.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 831.

31-6-104. Escheat of tangible personal property subject to administration in this state.

  1. Subject to subsection (b), all tangible personal property owned by a decedent that is subject to the control of a court of this state for the purposes of administration escheats to this state in accordance with § 31-6-101.
  2. Property that otherwise falls within subsection (a) does not escheat to this state but goes to another jurisdiction if the other jurisdiction claims the property and establishes that:
    1. The other jurisdiction is entitled to the property under its laws;
    2. The decedent customarily kept the property in that jurisdiction prior to the decedent's death; and
    3. This state has the right to escheat and take tangible personal property being administered as part of a decedent's estate in the other jurisdiction if the decedent customarily kept the property in this state prior to the decendent's death.

Acts 1979, ch. 226, § 4; T.C.A., § 31-804.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 831.

31-6-105. Escheat of intangible personal property of decedent domiciled in this state.

All intangible property owned by a decedent escheats to this state in accordance with § 31-6-101 if the decedent was domiciled in this state at the time of the decedent's death.

Acts 1979, ch. 226, § 5; T.C.A., § 31-805.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 831.

31-6-106. Escheat of intangible personal property subject to administration in this state.

  1. Subject to subsection (b), all intangible property owned by a decedent that is subject to the control of a court of this state for purposes of administration escheats to this state in accordance with § 31-6-101, whether or not the decedent was domiciled in this state at the decedent's death.
  2. The property described in subsection (a) does not escheat to this state but goes to another jurisdiction, if the other jurisdiction claims the property and establishes that:
    1. The other jurisdiction is entitled to the property under its laws;
    2. The decedent was domiciled in that jurisdiction at the decedent's death; and
    3. This state has the right to escheat and take intangible personal property being administered as part of a decedent's estate in that jurisdiction if the decedent was domiciled in this state at the decedent's death.

Acts 1979, ch. 226, § 6; T.C.A., § 31-806.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 831.

31-6-107. Reports concerning property that may be subject to escheat.

  1. All administrators, executors, trustees, guardians, or other fiduciaries having in their custody or control property that may be subject to escheat pursuant to this chapter shall promptly, after obtaining knowledge as to facts indicating the possibility of the escheat of any such property, file with the state treasurer a report on such forms as the state treasurer may prescribe, showing, with such other information as the treasurer may require, the nature, location and approximate value of the property, the basis for believing that it may be subject to escheat, and whether there are any other persons who have asserted or may assert claims to the property.
  2. The department of revenue shall review all inheritance or estate tax returns filed with it for the purpose of determining whether the estates include property that may be subject to escheat under this chapter and shall report any such property to the state treasurer.

Acts 1979, ch. 226, § 7; T.C.A., § 31-807; Acts 1986, ch. 539, § 3.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 831, 844, 1127.

31-6-108. Surrender and retention of property subject to escheat.

  1. Any person having custody of or control over property subject to escheat under this chapter may be fully released from any responsibility or liability with respect thereto by surrendering or delivering same to the state treasurer and formally disclaiming any interest therein.
  2. In the event property subject to escheat under this chapter is not surrendered or delivered to the treasurer as provided in subsection (a), the property shall be held until a final determination of the question of escheat by a court of competent jurisdiction as provided in this chapter, in which case the person having custody of or control over the property shall not be discharged from the person's duties as a fiduciary or personal representative until there has been a final determination of the question.

Acts 1979, ch. 226, § 8; T.C.A., § 31-808.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 831.

31-6-109. Suit involving escheat property — Duties of state treasurer and attorney general and reporter.

  1. Following notice to the state treasurer that a suit involving escheat property has been commenced, the state treasurer shall notify the attorney general and reporter of the action and together they shall determine what action, if any, shall be taken by the attorney general and reporter in order to protect the state's interest.
  2. The state treasurer shall be kept informed by the party filing the initial notice of all pleadings filed with the court regardless of any action taken by the attorney general and reporter.
  3. The state treasurer, through the attorney general and reporter, may intervene in the lawsuit at any stage in the proceeding if necessary to protect the state's interest.

Acts 1979, ch. 226, § 9; T.C.A., § 31-809; Acts 1986, ch. 539, § 4.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 831.

31-6-110. [Repealed.]

Compiler's Notes. Former § 31-6-110 (Acts 1979, ch. 226, § 10; T.C.A., § 31-810), concerning joinder, was repealed by Acts 1986, ch. 539, § 5.

31-6-111. Intervention.

  1. Any person, except another state, who claims an interest in any property that is the subject of an escheat proceeding under this chapter may intervene by filing a petition in that proceeding, setting forth the basis of the person's claim, which petitions shall be disposed of by the court in determining whether the property has escheated pursuant to this chapter.
  2. If any other state claims an interest in any property that is the subject of an escheat proceeding under this chapter, the other state may file an intervening petition in the suit for the determination of its claim, if the other state provides for the determination of claims by this state under similar circumstances.

Acts 1979, ch. 226, § 11; T.C.A., § 31-811.

Cross-References. Intervention, Tenn. R. Civ. P. 24.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 831.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 1-24.02-1.

31-6-112. Determination of title.

In any escheat proceeding where the court determines that the property has not escheated to this state, the court shall determine what person or persons is or are entitled to the property or its proceeds.

Acts 1979, ch. 226, § 12; T.C.A., § 31-812.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 831.

31-6-113. Sale pending determination.

In any escheat proceeding where the court determines a sale of the property prior to the final determination of the case to be advisable in order to protect the true owner from loss and to realize the maximum proceeds following notice to the treasurer by the representative of the estate, the court may order such a sale on such terms and in such manner as it deems advisable. In case such a sale is ordered, the proceeds shall be disposed of as the original property would have been but for the sale.

Acts 1979, ch. 226, § 13; T.C.A., § 31-813; Acts 1986, ch. 539, § 6.

31-6-114. Joinder of treasurer in case that may involve property subject to escheat.

  1. In any case in any court of this state involving the title to any property, including, but not limited to, proceedings involving the validity or construction of wills, where it appears that the property may be subject to escheat under this chapter, the state treasurer shall be made a party defendant therein, either in the original pleadings, on motion of any party, on petition of the treasurer, or by the court on its own motion. Process shall be served on the treasurer as otherwise provided by law, and after making such investigation as the treasurer deems appropriate, the treasurer shall, through the attorney general and reporter, file such pleadings and take such position as may be determined to best protect the interest of the state.
  2. In any such case, if the court decrees that the property has escheated to this state under this chapter, then no further proceeding shall be necessary to establish the state's right to the property and the property shall be disposed of by the treasurer as provided in § 61-6-116 for other property escheating to the state.

Acts 1979, ch. 226, § 14; T.C.A., § 31-814.

Cross-References. Joinder, Tenn. R. Civ. P. Rules 19 and 20.

31-6-115. Proceedings in other states.

  1. In any case where it appears to the treasurer that property that is not subject to the jurisdiction of courts of this state has escheated to this state under this chapter and the other state provides a remedy to this state for the establishment of the rights of this state to such property, and it further appears to the treasurer that the value of the property justifies asserting the claim of this state, the treasurer shall request the attorney general and reporter and the attorney general and reporter shall take such action as deemed appropriate to assert the claim and protect the interest of this state.
  2. This state may pay all reasonable costs incurred by any other state in any action brought by the other state at the request of the attorney general and reporter of this state under this section. Any state bringing such an action may be entitled additionally to a reward of up to fifteen percent (15%) of the value, after deducting reasonable costs, of any property recovered for this state as a direct or indirect result of the action.

Acts 1979, ch. 226, § 15; T.C.A., § 31-815.

31-6-116. Disposition of escheated property.

All escheated property delivered to the state treasurer under this chapter shall be held and disposed of in the same manner and together with other interest bearing property reported to the state treasurer under title 66, chapter 29, part 1.

Acts 1979, ch. 226, § 16; T.C.A., § 31-816; Acts 1986, ch. 539, § 7.

31-6-117, 31-6-118. [Repealed.]

Compiler's Notes. Former §§ 31-6-117, 31-6-118 (Acts 1979, ch. 226, §§ 17, 18; T.C.A., §§ 31-817, 31-818), concerning deposit of funds and disposition of valueless property, were repealed by Acts 1986, ch. 539, §§ 8, 9. For current law, see § 31-6-116.

31-6-119. Claims for property of decedent.

Any person claiming to be entitled to the property of any decedent may file a claim thereto with the treasurer in accordance with title 66, chapter 29, part 1, governing the disposition of unclaimed property.

Acts 1979, ch. 226, § 19; T.C.A., § 31-819; Acts 1986, ch. 539, § 10.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 831.

31-6-120. Rules and regulations.

The treasurer is authorized to make necessary rules and regulations to carry out this chapter.

Acts 1979, ch. 226, § 20; T.C.A., § 31-820.

31-6-121. Excepted property.

This chapter shall not apply to any property that has been presumed abandoned or has escheated under the laws of another state prior to January 1, 1980.

Acts 1979, ch. 226, § 21; T.C.A., § 31-821.

31-6-122. Right of appeal.

All parties to any suit instituted under this chapter shall have the right to appeal in the manner provided by the Tennessee Rules of Appellate Procedure.

Acts 1981, ch. 449, § 2; T.C.A., § 31-822.

Chapter 7
Tennessee Disclaimer of Property Interests Act

31-7-101. Short Title.

This chapter shall be known and may be cited as the “Tennessee Disclaimer of Property Interests Act.”

Acts 2019, ch. 340, § 2.

Effective Dates. Acts 2019, ch. 340, § 20. May 10, 2019.

31-7-102. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Disclaimant” means the person to whom a disclaimed interest or power would have passed had the disclaimer not been made;
  2. “Disclaimed interest” means the interest that would have passed to the disclaimant had the disclaimer not been made;
  3. “Disclaimer” means the refusal to accept an interest in or power over property;
  4. “Fiduciary” means a personal representative, trustee, agent acting under a power of attorney, or other person authorized to act as a fiduciary with respect to the property of another person;
  5. “Jointly held property” means property held in the name of two (2) or more persons under an arrangement in which all holders have concurrent interests and under which the last surviving holder is entitled to the whole of the property;
  6. “Person” means an individual; fiduciary; corporation; business trust; estate; trust; partnership; limited liability company; association; joint venture; government, governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity;
  7. “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. “State” includes an Indian tribe or band, or Alaskan native village, recognized by federal law or formally acknowledged by a state; and
  8. “Trust” means:
    1. An express trust, charitable or noncharitable, with additions thereto, whenever and however created; and
    2. A trust created pursuant to a statute, judgment, or decree that requires the trust to be administered in the manner of an express trust.

Acts 2019, ch. 340, § 2.

Effective Dates. Acts 2019, ch. 340, § 20. May 10, 2019.

31-7-103. Scope.

This chapter applies to disclaimers of any interest in or power over property, whenever created.

Acts 2019, ch. 340, § 2.

Effective Dates. Acts 2019, ch. 340, § 20. May 10, 2019.

31-7-104. Disclaimer Act supplement by other law.

  1. Unless displaced by this chapter, the principles of law and equity supplement this chapter.
  2. This chapter does not limit any right of a person to waive, release, disclaim, or renounce an interest in or power over property under a law other than this chapter.

Acts 2019, ch. 340, § 2.

Effective Dates. Acts 2019, ch. 340, § 20. May 10, 2019.

31-7-105. Power to disclaim — General requirements — When irrevocable.

  1. A person may disclaim, in whole or part, any interest in or power over property, including a power of appointment. A person may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim.
  2. Except to the extent a fiduciary's right to disclaim is expressly restricted or limited by state law or by the instrument creating the fiduciary relationship, a fiduciary may disclaim, in whole or part, any interest in or power over property, including a power of appointment, whether acting in a personal or representative capacity. A fiduciary may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim, or an instrument other than the instrument that created the fiduciary relationship imposed a restriction or limitation on the right to disclaim.
  3. To be effective, the disclaimer must:
    1. Be in writing;
    2. Declare the disclaimer, and the extent thereof;
    3. Describe the interest or power disclaimed; and
    4. Be signed either by:
      1. The person making the disclaimer; or
      2. Some person subscribing the name of the person making the disclaimer, in the person's presence and by such person's express direction in the presence of two (2) or more witnesses competent to witness a will under title 32.
  4. A partial disclaimer may be expressed as a fraction, percentage, monetary amount, term of years, limitation of a power, or any other interest or estate in the property.
  5. A disclaimer becomes irrevocable when it is delivered or filed pursuant to § 31-7-112 or when it becomes effective as provided in §§ 31-7-106 — 31-7-111, whichever occurs later.

Acts 2019, ch. 340, § 2.

Effective Dates. Acts 2019, ch. 340, § 20. May 10, 2019.

31-7-106. Disclaimer of interests in property.

  1. As used in this section:
    1. “Future interest” means an interest that takes effect in possession or enjoyment, if at all, later than the time of its creation; and
    2. “Time of distribution” means the time when a disclaimed interest would have taken effect in possession or enjoyment.
  2. Except for a disclaimer governed by § 31-7-107 or § 31-7-108, the following rules apply to a disclaimer of an interest in property:
    1. The disclaimer takes effect as of the time the instrument creating the interest becomes irrevocable, or, if the interest arose under the law of intestate succession, as of the time of the intestate's death;
    2. The disclaimed interest passes according to any provision in the instrument creating the interest providing for the disposition of the interest, should it be disclaimed, or of disclaimed interests in general;
    3. If the instrument does not contain a provision described in subdivision (b)(2), the following rules apply:
      1. If the disclaimant is not an individual, the disclaimed interest passes as if the disclaimant did not exist;
      2. If the disclaimant is an individual, except as otherwise provided in subdivisions (3)(C) and (3)(D), the disclaimed interest passes as if the disclaimant had died immediately before the time of distribution;
      3. If by law or under the instrument, the descendants of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died immediately before the time of distribution, the disclaimed interest passes only to the descendants of the disclaimant who survive the time of distribution; and
      4. If the disclaimed interest would pass to the disclaimant's estate had the disclaimant died before the time of distribution, the disclaimed interest instead passes per stirpes to the descendants of the disclaimant who survive the time of distribution. If no descendant of the disclaimant survives the time of distribution, the disclaimed interest passes to those persons, including the state but excluding the disclaimant, and in such shares as would succeed to the transferor's intestate estate under the intestate succession law of the transferor's domicile had the transferor died at the time of distribution; and
    4. Upon the disclaimer of a preceding interest, a future interest held by a person other than the disclaimant takes effect as if the disclaimant had died or ceased to exist immediately before the time of distribution, but a future interest held by the disclaimant is not accelerated in possession or enjoyment.

Acts 2019, ch. 340, § 2.

Effective Dates. Acts 2019, ch. 340, § 20. May 10, 2019.

31-7-107. Disclaimer of rights of survivorship in jointly held property.

  1. Upon the death of a holder of jointly held property, a surviving holder may disclaim, in whole or part, the greater of:
    1. A fractional share of the property determined by dividing the number one (1) by the number of joint holders alive immediately before the death of the holder to whose death the disclaimer relates; or
    2. All of the property except that part of the value of the entire interest attributable to the contribution furnished by the disclaimant.
  2. A disclaimer under subsection (a) takes effect as of the death of the holder of jointly held property to whose death the disclaimer relates.
  3. An interest in jointly held property disclaimed by a surviving holder of the property passes as if the disclaimant predeceased the holder to whose death the disclaimer relates.

Acts 2019, ch. 340, § 2.

Effective Dates. Acts 2019, ch. 340, § 20. May 10, 2019.

31-7-108. Disclaimer of interest by trustee.

If a trustee disclaims an interest in property that otherwise would have become trust property, the interest does not become trust property.

Acts 2019, ch. 340, § 2.

Effective Dates. Acts 2019, ch. 340, § 20. May 10, 2019.

31-7-109. Disclaimer of power of appointment not held in a fiduciary capacity or other power not held in a fiduciary capacity.

If a holder disclaims a power of appointment not held in a fiduciary capacity or other power not held in a fiduciary capacity, the following rules apply:

  1. If the holder has not exercised the power, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable;
  2. If the holder has exercised the power and the disclaimer is of a power other than a presently exercisable general power of appointment, the disclaimer takes effect immediately after the last exercise of the power; and
  3. The instrument creating the power is construed as if the power expired when the disclaimer became effective.

Acts 2019, ch. 340, § 2.

Effective Dates. Acts 2019, ch. 340, § 20. May 10, 2019.

31-7-110. Disclaimer by appointee, object, or taker in default of exercise of power of appointment.

  1. A disclaimer of an interest in property by an appointee of a power of appointment takes effect as of the time the instrument by which the holder exercises the power becomes irrevocable.
  2. A disclaimer of an interest in property by a permissible appointee or taker in default of an exercise of a power of appointment takes effect as of the time the instrument creating the power becomes irrevocable.

Acts 2019, ch. 340, § 2.

Effective Dates. Acts 2019, ch. 340, § 20. May 10, 2019.

31-7-111. Disclaimer of power held in fiduciary capacity.

  1. If a fiduciary disclaims a power held in a fiduciary capacity which has not been exercised, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable.
  2. If a fiduciary disclaims a power held in a fiduciary capacity which has been exercised, the disclaimer takes effect immediately after the last exercise of the power.
  3. A disclaimer under this section is effective as to another fiduciary if the disclaimer so provides and the fiduciary disclaiming has the authority to bind the estate, trust, or other person for whom the fiduciary is acting.

Acts 2019, ch. 340, § 2.

Effective Dates. Acts 2019, ch. 340, § 20. May 10, 2019.

31-7-112. Delivery or filing.

  1. As used in this section, “beneficiary designation” means an instrument, other than an instrument creating a trust, naming the beneficiary of:
    1. An annuity or insurance policy;
    2. An account with a designation for payment on death;
    3. A security registered in beneficiary form;
    4. A pension, profit-sharing, retirement, or other employment-related benefit plan; or
    5. Any other nonprobate transfer at death.
  2. Subject to subdivision (c)(1), delivery of a disclaimer may be affected by personal delivery, first-class mail, or any other method likely to result in its receipt.
  3. In the case of an interest created under the law of intestate succession or an interest created by will, other than an interest in a testamentary trust:
    1. A disclaimer must be delivered to the personal representative of the decedent's estate; or
    2. If no personal representative is then serving, the disclaimer must be filed with a court having jurisdiction to appoint the personal representative.
  4. In the case of an interest in a testamentary trust:
    1. A disclaimer must be delivered to the trustee then serving;
    2. If no trustee is then serving, the disclaimer must be delivered to the personal representative of the decedent's estate; or
    3. If no trustee is then serving and no personal representative is then serving, the disclaimer must be filed with a court having jurisdiction to enforce the trust.
  5. In the case of an interest in an inter vivos trust:
    1. A disclaimer must be delivered to the trustee then serving;
    2. If no trustee is then serving, the disclaimer must be filed with a court having jurisdiction to enforce the trust; or
    3. If the disclaimer is made before the time the instrument creating the trust becomes irrevocable, the disclaimer must be delivered to the settlor of a revocable trust or the transferor of the interest.
  6. In the case of an interest created by a beneficiary designation that is disclaimed before the designation becomes irrevocable, the disclaimer must be delivered to the person making the beneficiary designation.
  7. In the case of an interest created by a beneficiary designation which is disclaimed after the designation becomes irrevocable:
    1. The disclaimer of an interest in personal property must be delivered to the person obligated to distribute the interest; and
    2. The disclaimer of an interest in real property must be recorded in the office of the county register's office of the county where the real property that is the subject of the disclaimer is located.
  8. In the case of a disclaimer by a surviving holder of jointly held property, the disclaimer must be delivered to the person to whom the disclaimed interest passes.
  9. In the case of a disclaimer by an object or taker in default of exercise of a power of appointment at any time after the power was created, the disclaimer must be delivered to:
    1. The holder of the power; and
    2. The fiduciary acting under the instrument that created the power; provided, however, if no fiduciary is then serving, the disclaimer must be filed with a court having authority to appoint the fiduciary.
  10. In the case of a disclaimer by an appointee of a nonfiduciary power of appointment, the disclaimer must be delivered to:
    1. The holder or personal representative of the holder's estate; and
    2. The fiduciary under the instrument that created the power; provided, however, that if no fiduciary is then serving, the disclaimer must be filed with a court having authority to appoint the fiduciary.
  11. In the case of a disclaimer by a fiduciary of a power over a trust or estate, the disclaimer must be delivered as provided in subsection (c), (d), or (e), as if the power disclaimed were an interest in property.
  12. In the case of a disclaimer of a power by an agent, the disclaimer must be delivered to the principal or the principal's representative.

Acts 2019, ch. 340, § 2.

Effective Dates. Acts 2019, ch. 340, § 20. May 10, 2019.

31-7-113. When disclaimer barred or limited.

  1. A disclaimer is barred by a written waiver of the right to disclaim.
  2. A disclaimer of an interest in property is barred if any of the following events occur before the disclaimer becomes effective:
    1. The disclaimant accepts the interest sought to be disclaimed;
    2. The disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers the interest sought to be disclaimed or contracts to do so; or
    3. A judicial sale of the interest sought to be disclaimed occurs.
  3. A disclaimer, in whole or part, of the future exercise of a power held in a fiduciary capacity is not barred by its previous exercise.
  4. Unless the power is exercisable in favor of the disclaimant, a disclaimer, in whole or part, of the future exercise of a power not held in a fiduciary capacity is not barred by its previous exercise.
  5. A disclaimer is barred or limited if so provided by law other than this chapter.
  6. A disclaimer of a power over property which is barred by this section is ineffective. A disclaimer of an interest in property which is barred by this section takes effect as a transfer of the interest disclaimed to the persons who would have taken the interest under this chapter had the disclaimer not been barred.

Acts 2019, ch. 340, § 2.

Effective Dates. Acts 2019, ch. 340, § 20. May 10, 2019.

31-7-114. Tax qualified customer.

  1. Notwithstanding this chapter, if as a result of a disclaimer or transfer the disclaimed or transferred interest is treated pursuant to title 26 of the United States code, as now or hereafter amended, or any successor statute thereto, and the regulations promulgated thereunder, as never having been transferred to the disclaimant, then the disclaimer or transfer is effective as a disclaimer under this chapter.
  2. Tax qualified disclaimers must comply with the rules set forth in 26 U.S.C. § 2518, as now or hereafter amended, or any successor statute thereto, and the regulations promulgated thereunder, including the nine-month time limitation set forth under 26 U.S.C. § 2518(b)(2).

Acts 2019, ch. 340, § 2.

Effective Dates. Acts 2019, ch. 340, § 20. May 10, 2019.

31-7-115. Recording of disclaimer.

If an instrument transferring an interest in or power over property subject to a disclaimer is required or permitted by law to be filed, recorded, or registered, the disclaimer may be so filed, recorded, or registered. Except as otherwise provided in § 31-7-112(g)(2), failure to file, record, or register the disclaimer does not affect its validity as between the disclaimant and persons to whom the property interest or power passes by reason of the disclaimer.

Acts 2019, ch. 340, § 2.

Effective Dates. Acts 2019, ch. 340, § 20. May 10, 2019.

31-7-116. Application to existing relationships.

Except as otherwise provided in § 31-7-113, an interest in or power over property existing on May 10, 2019 as to which the time for delivering or filing a disclaimer under law superseded by this chapter has not expired may be disclaimed after May 10, 2019.

Acts 2019, ch. 340, § 2.

Effective Dates. Acts 2019, ch. 340, § 20. May 10, 2019.

31-7-117. Severability clause.

If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to that end the provisions of this chapter are declared to be severable.

Acts 2019, ch. 340, § 2.

Effective Dates. Acts 2019, ch. 340, § 20. May 10, 2019.