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Tennessee Surviving Spouse Rights in Probate
Support GuideTennessee11 min read

Tennessee Surviving Spouse Rights in Probate

Tennessee surviving spouse rights explained: the elective share sliding scale by marriage length, plus year's support, exempt property, and the homestead right.

By Settled Editorial

Tennessee law protects a surviving spouse with a set of rights that a will cannot erase. Even if the will leaves everything to someone else, the spouse can claim an elective share, a year's support allowance, exempt property, and a homestead right. This guide explains each protection, the exact dollar figures and percentages Tennessee uses, and how the rights fit together under Titles 30 and 31 of the Tennessee Code.

Tennessee probate runs county by county, most often through the Chancery Court and its Clerk and Master, so the surviving spouse claims and defends these rights in the court where the estate is filed.

Overview of Spousal Rights

Tennessee gives a surviving spouse several separate protections. They come from different statutes and are cumulative, meaning the spouse can claim more than one.

  1. Elective share. The right to take a percentage of the decedent's net estate instead of what a will provides, on a sliding scale tied to the length of the marriage.
  2. Year's support allowance. A reasonable amount of money out of the estate for the spouse's maintenance during the year after death.
  3. Exempt property. A set amount of tangible personal property and a vehicle, set aside free of estate claims.
  4. Homestead right. A life estate in the principal residence, protected up to a statutory value cap.
  5. Intestate share. The spouse's inheritance when there is no valid will.

These Rights Stack

Under Tenn. Code Ann. 30-2-101 and 30-2-102, the exempt property, the year's support allowance, and the homestead right are in addition to one another and in addition to any share the spouse takes by intestate succession or by elective share. They are separate from title, beneficiary designations, and survivorship arrangements.

The Elective Share

What the Elective Share Does

The elective share lets a surviving spouse claim a percentage of the decedent's net estate instead of taking under the will. It is the tool that keeps a spouse from being disinherited by a will. It is a right against a will, not the rule for a no-will estate, and it is governed by Tenn. Code Ann. 31-4-101.

The Sliding Scale by Length of Marriage

Tennessee does not use a single flat percentage. The elective-share percentage rises with 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

So a spouse married eighteen months can elect 10% of the net estate, while a spouse married more than nine years can elect 40%. The percentage is applied to the decedent's net estate, and computing that net figure can be involved, so a spouse considering an election should confirm the estate value with the court and a licensed Tennessee attorney.

The Elective Share Is Separate From the Allowances

Under Tenn. Code Ann. 31-4-101, the exempt property, homestead, and year's support are generally not charged against the elective share, meaning they do not reduce it. A surviving spouse should analyze the elective share, the allowances, intestacy, and the will provisions together, because they interact. Confirm the current offset rules before relying on any single number.

Year's Support (Family Allowance)

What It Is

In addition to homestead, exempt property, and any elective share, the surviving spouse is entitled to a reasonable allowance in money out of the estate for maintenance during the one year after the decedent's death. This is Tennessee's year's support allowance under Tenn. Code Ann. 30-2-102.

No Fixed Dollar Cap

Tennessee's year's support is discretionary and need-based. It is not a fixed lump sum. The amount is set according to the surviving spouse's previous standard of living and takes into account the condition of the estate. The court may consider the totality of the circumstances, including assets passing to the spouse outside probate.

Who Receives It

The surviving spouse receives the year's support, including for any unmarried minor children the spouse is supporting. If there is no surviving spouse, a reasonable allowance is provided for the support of the decedent's unmarried minor children for one year.

Priority

The year's support allowance has priority over and is exempt from most estate claims, subject to statutory limits. Because it is support-focused and has priority, it can matter early in an administration when a spouse needs funds before the estate is settled.

Exempt Property

The $50,000 Set-Aside

Under Tenn. Code Ann. 30-2-101, the surviving spouse is entitled to exempt property having a fair-market value, in excess of any indebtedness or security interests, that does not exceed $50,000. It consists of tangible personal property normally located in or about the principal residence and not used primarily in a trade, business, or for investment, plus a motor vehicle or vehicles not used primarily in a trade or business.

The $50,000 figure is measured in excess of security interests, so a lien on an item reduces the net value that counts against the cap. Check liens and purchase-money obligations before treating property as available.

It Is Protected From Creditors

The exempt property delivered to the spouse is not liable for payment of claims against the estate. It passes to the spouse even where the estate is thin.

If There Is No Surviving Spouse

If there is no surviving spouse, the decedent's unmarried minor children take the tangible personal property as tenants in common. The vehicle category is a surviving-spouse right and is not extended to the minor children.

Homestead

The Homestead Right

Tennessee's homestead is a value-capped exemption and a life-estate right, not a Florida-style restriction on devising the residence. On death, the homestead inures to the surviving spouse for the spouse's natural life, and then passes to the decedent's minor children until the youngest reaches majority, free from the decedent's debts. It is set apart under Tenn. Code Ann. 30-2-201 and following, with descent governed by Tenn. Code Ann. 31-1-104.

The Dollar Cap Is Date-Banded

The homestead value cap changed on January 1, 2022, so the amount depends on the controlling date. For claims and deaths on or after January 1, 2022, the exemption under Tenn. Code Ann. 26-2-301 is $35,000 for a single homeowner and $52,500 in the aggregate for individuals who jointly own and use the property as their principal residence. Prior law, controlling claims and deaths through December 31, 2021, used lower figures of $5,000, $7,500, and $25,000. Band any homestead figure by the date that controls the estate.

It Is a Life Estate, Not Fee Title

The homestead gives the surviving spouse the right to use and occupy the residence for life. It does not by itself hand the spouse outright fee title, and it does not by itself transfer record title, so deeds and estate documentation are still required. Tennessee's homestead exemption is automatic and does not require recording a homestead deed to be claimed.

Intestate Share

When There Is No Will

When the decedent dies without a valid will, the surviving spouse takes an intestate share under Tenn. Code Ann. 31-2-104(a). The share turns on whether the decedent left surviving issue, meaning children or their descendants.

Family situationSurviving spouse
No surviving issueThe entire intestate estate
One or more surviving issueThe greater of one-third or a child's share

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 greater. A child's share counts the spouse as one taker alongside the children, so with one child the spouse takes one-half, and with three or more children the one-third floor applies. Tennessee does not change this share based on whether the children are from the marriage or a prior relationship.

The intestate share is a separate right from the elective share. When there is no will, the spouse's share comes from this greater-of formula, not from the elective-share percentage scale. For the full picture, see the Tennessee intestate succession guide.

Waiver and Forfeiture

Waiver by Agreement

A surviving spouse can give up spousal rights in advance through a valid marital agreement, such as a prenuptial or postnuptial agreement. To be relied on, such an agreement should be in writing, entered voluntarily, and made with fair disclosure of finances. Whether a specific agreement waived a particular right is a legal question for the court and a licensed Tennessee attorney.

The Slayer Rule

A person who feloniously and intentionally kills the decedent forfeits any interest in the decedent's estate and is treated as having predeceased the decedent under Tenn. Code Ann. 31-1-106. A spouse in that situation loses the rights described here.

The 120-Hour Survival Rule

An heir generally must survive the decedent by 120 hours, which is five days, to take. Under Tenn. Code Ann. 31-3-120, a spouse who fails to survive by that margin is treated as having predeceased the decedent for intestate succession, the elective share, and the family allowances.

Deadlines

Tennessee sets much of the timing locally, so confirm the exact dates with the court where the estate is filed.

  • Exempt property. The surviving spouse or the custodian of unmarried minor children applies for the exempt property before it is distributed or sold, during administration.
  • Year's support. The allowance is determined during estate administration. An interested person may petition the probate court if there is a dispute.
  • Homestead. The homestead is assigned and set apart as part of estate administration.
  • Elective share. The election is claimed during administration under statutory time limits. Because the specific deadline is date-sensitive, verify the current time limit with the Clerk and Master, the county probate court, or a licensed Tennessee attorney before relying on it.

Do not assume a right is preserved if the claiming window has run. Put any demand in writing and keep a copy.

Frequently Asked Questions

Can a spouse be disinherited in Tennessee?

Not fully. Even if the will leaves nothing to the surviving spouse, Tennessee law lets the spouse claim the elective share, the year's support allowance, exempt property, and the homestead right. These protections exist apart from what the will says.

How much is the Tennessee elective share?

It is a percentage of the decedent's net estate that rises with the length of the marriage under Tenn. Code Ann. 31-4-101: 10% if married less than 3 years, 20% for 3 to less than 6 years, 30% for 6 to less than 9 years, and 40% for 9 years or more.

How much exempt property can a surviving spouse claim?

Up to $50,000 in fair-market value, measured in excess of any security interests, in tangible personal property from the principal residence plus a motor vehicle or vehicles not used primarily in a trade or business, under Tenn. Code Ann. 30-2-101.

Is Tennessee's year's support a set amount?

No. The year's support is a reasonable, need-based allowance for the one year after death, with no fixed dollar cap. The court sets the amount based on the spouse's standard of living and the condition of the estate under Tenn. Code Ann. 30-2-102.

Related Guides

Sources

This guide is general information about Tennessee surviving spouse rights. Tennessee probate runs county by county, so local practice and deadlines change by court, and the homestead figure depends on the controlling date. Confirm your situation with the Clerk and Master, the county probate court, or a licensed Tennessee attorney before you act. It is not legal advice.

Information current as of July 1, 2026

Settled Estate is not a law firm, and 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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