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Tennessee Intestate Succession: Who Inherits Without a Will
Support GuideTennessee10 min read

Tennessee Intestate Succession: Who Inherits Without a Will

Who inherits under Tennessee intestate succession: the spouse takes the greater of one-third or a child's share, then the estate passes to issue under 31-2-104.

By Settled Editorial

When a Tennessee resident dies without a will, the state's intestate succession rules decide who inherits. This guide answers one question: who gets what. It maps the distribution rules under Tenn. Code Ann. 31-2-104 and the sections around it. The short version: the surviving spouse takes either one-third of the estate or a child's share, whichever is greater, and the rest passes to the decedent's children and their descendants.

This is the inheritance side of intestacy, meaning who the heirs are. For opening the estate and appointing someone to run it, read the Tennessee probate guide. A no-will estate still needs a personal representative, and the Tennessee executor and administrator duties guide covers that role. A valid will overrides everything below, so the Tennessee will requirements guide explains how to keep an estate out of intestacy in the first place.

What Intestate Succession Covers

Dying without a will is called dying "intestate." When that happens, no will names the heirs, so Tennessee statute does. The rules sit in Tenn. Code Ann. 31-2-104, and they run in a fixed order of family classes.

Intestate succession reaches only probate property, meaning assets that pass through the estate. Assets with a named beneficiary, a payable-on-death tag, survivorship rights, or trust ownership pass outside intestacy and skip these rules. So a life insurance policy with a named beneficiary, or a joint account with right of survivorship, goes to that person no matter what the statute says about heirs. To see which assets bypass probate, read how to avoid probate in Tennessee.

One more point sets the order. A spouse takes their share first, and only the part that does not pass to the spouse moves down to the other classes.

The Surviving Spouse Share

The spouse's share under Tenn. Code Ann. 31-2-104(a) turns on a single fact: whether the decedent left surviving issue. "Issue" means children and their descendants.

Family situationSurviving spouseDecedent's issue
No surviving issueEntire estateNone
One or more surviving issueThe greater of one-third or a child's shareThe rest of the estate, by representation

So with no children or grandchildren, the spouse takes everything. With surviving issue, the spouse takes either one-third of the estate or a child's share, whichever is larger.

Here is how a child's share works. The spouse counts as one taker alongside the children. With one child, the spouse and the child each take a child's share, so the spouse takes one-half, which beats one-third. With two children, three takers split the estate, so a child's share is one-third, which ties one-third. With three or more children, a child's share drops below one-third, so the spouse takes the one-third floor instead. The greater-of formula always protects the spouse with at least one-third. (Source: Tenn. Code Ann. 31-2-104.)

Tennessee does not change this share based on whether the children are from the marriage or from a prior relationship. The same greater-of formula applies to all of the decedent's issue.

The Elective Share Is a Separate Right

The intestate share above is not the only option for a surviving spouse, and people often confuse it with the elective share. They are different rights under different statutes.

The elective share lets a surviving spouse claim a percentage of the decedent's net estate instead of taking under a will. It runs on a sliding scale tied to the length of the marriage under Tenn. Code Ann. 31-4-101:

Length of marriageElective-share percentage
Less than 3 years10% of the net estate
3 years but less than 6 years20% of the net estate
6 years but less than 9 years30% of the net estate
9 years or more40% of the net estate

Here is the distinction that trips people up. The elective share is a tool against a will, not the rule for an intestate estate. When there is no will, the spouse's share comes from the greater-of formula in 31-2-104, not from this percentage scale. A surviving spouse should analyze both rights, the allowances below, and any will provisions together, because they interact. (Source: Tenn. Code Ann. 31-4-101.)

Family Allowances Come Off the Top

Before the estate divides, a surviving spouse, or the unmarried minor children if there is no spouse, can claim protected amounts under Title 30. These are separate from and in addition to the intestate share:

  • exempt property up to $50,000 in fair-market value, in excess of security interests, covering household tangible personal property; a surviving spouse may also claim a motor vehicle, but when there is no surviving spouse the unmarried minor children are entitled only to the tangible-personal-property category, not the vehicle (Tenn. Code Ann. 30-2-101(a)(2))
  • a year's support allowance, a reasonable amount of money for one year, with no fixed dollar cap (Tenn. Code Ann. 30-2-102)

These allowances take priority over most estate claims, so the shares below apply to what remains after the allowances and valid debts are handled.

When There Is No Surviving Spouse

With no surviving spouse, or for the portion that does not pass to a spouse, the estate descends through a fixed order of classes under Tenn. Code Ann. 31-2-104(b). Each class must be empty before the next inherits.

  1. Issue. The decedent's children and their descendants take the whole estate. If they are all the same degree of kinship, they take equally. If of unequal degree, the more remote take by representation.
  2. Parents. With no surviving issue, the estate passes to the decedent's parent or parents equally.
  3. Brothers and sisters and their issue. With no surviving issue or parent, the estate passes to the decedent's siblings and the issue of any deceased sibling, by representation.
  4. Grandparents and their issue. With no surviving issue, parent, or issue of a parent, half passes to the paternal grandparents or their issue and half to the maternal grandparents or their issue. If one side has no taker, the whole estate passes to the other side.

If a class has living members, the search stops there. The estate does not skip a living parent to reach a sibling, and it does not skip a living sibling to reach a grandparent.

Representation: How a Deceased Heir's Share Passes Down

When an heir who would have inherited dies before the decedent but leaves descendants, those descendants step into that heir's place. Tennessee calls this taking "by representation."

A worked example makes it concrete. Say a decedent with no spouse had three children, and one child died first leaving two children of their own. The estate divides into three equal shares. The two living children each take one-third. The deceased child's one-third passes to that child's two children, who split it, so each grandchild takes one-sixth. The two grandchildren do not each take a full child's share; they divide the single share their parent would have received. (Source: Tenn. Code Ann. 31-2-104(b).)

Half-Blood Relatives Take a Full Share

Tennessee treats half-blood relatives differently from many older codes. A half-blood relative shares only one parent with the connecting ancestor, such as a half-sibling who shares one parent with the decedent.

Under Tenn. Code Ann. 31-2-107, relatives of the half blood inherit the same share they would inherit if they were of the whole blood. So a half-sibling and a whole-blood sibling in the same class take equal shares. Tennessee does not cut a half-blood relative's portion.

Afterborn Heirs and the 120-Hour Survival Rule

Two timing rules can change who counts as an heir.

Afterborn heirs. A relative conceived before the decedent's death but born after still inherits. Under Tenn. Code Ann. 31-2-108, such a child inherits as if born during the decedent's lifetime. So a child in utero at the decedent's death is counted as an heir.

The 120-hour rule. An heir generally must outlive the decedent by 120 hours, which is five days, to take. Under Tenn. Code Ann. 31-3-120, an heir who fails to survive by that margin is deemed to have predeceased the decedent for intestate succession, the elective share, and the family allowances. The estate then passes as if that heir had died first.

What Happens If No Heir Exists

Tennessee's intestate rules reach a wide circle of relatives, so an estate rarely has no heir. If no taker can be found under the intestate chapter, the estate escheats to the State of Tennessee under Tenn. Code Ann. 31-2-109. Escheat is the last resort, not the default. Dying without a will does not hand the estate to the state in the ordinary case; it sends the estate down the family tree first.

How the Pieces Fit Together

Use this sequence to read an intestate distribution:

  1. Separate probate property from assets that pass by beneficiary, survivorship, or trust. Only probate property follows these rules.
  2. Take the family allowances off the top for the surviving spouse or unmarried minor children, and account for valid debts.
  3. Apply the spouse share under 31-2-104(a): the entire estate with no issue, or the greater of one-third and a child's share when issue survive.
  4. For any portion not passing to a spouse, run the class order: issue, then parents, then siblings and their issue, then grandparents and their issue.
  5. Apply representation for any deceased heir who left descendants, and remember half-blood relatives take a full share.
  6. Adjust for afterborn heirs and the 120-hour survival rule if they apply.

If the personal probate estate is small, the family may settle it with the Tennessee small estate affidavit path rather than full administration, though the same shares decide who collects. Whoever serves still follows the executor and administrator duties that govern gathering assets, paying debts, and distributing the shares.

When to Get Help

Some intestate distributions are simple to map from the statute. Others need a licensed Tennessee attorney, especially when:

  • the greater-of spouse formula is close and the child count changes the math
  • a deceased heir's branch raises a representation question
  • the elective share and the intestate share both seem to apply
  • an heir cannot be located or the family tree is unclear
  • an afterborn heir or the 120-hour rule affects who counts
  • real estate must be sold to pay debts

This guide helps you organize the source-backed shares and the right questions. A lawyer can advise on rights, disputes, and a specific estate. To find your local probate court, use the Tennessee court directory.

This guide is general information about Tennessee estates. It is not legal advice. Confirm anything that affects your situation with the Clerk and Master, the probate court for your county, or a licensed Tennessee attorney.

Sources

Information current as of June 14, 2026

This content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Tennessee can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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