(a)

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Terms Used In Tennessee Code 31-4-101

  • Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
  • Decedent: A deceased person.
  • Gross estate: The total fair market value of all property and property interests, real and personal, tangible and intangible, of which a decedent had beneficial ownership at the time of death before subtractions for deductions, debts, administrative expenses, and casualty losses suffered during estate administration.
  • Intestate: Dying without leaving a will.
  • Life estate: A property interest limited in duration to the life of the individual holding the interest (life tenant).
  • Marital deduction: The deduction(s) that can be taken in the determination of gift and estate tax liabilities because of the existence of a marriage or marital relationship.
  • Person: includes a corporation, firm, company or association. See Tennessee Code 1-3-105
  • Personal representative: includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status. See Tennessee Code 31-1-101
  • Probate: Proving a will
  • Property: includes both real and personal property or any interest therein and means anything that may be the subject of ownership. See Tennessee Code 31-1-101
  • Statute: A law passed by a legislature.
  • United States: includes the District of Columbia and the several territories of the United States. See Tennessee Code 1-3-105
  • Year: means a calendar year, unless otherwise expressed. See Tennessee Code 1-3-105
(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.
(b) 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.
(c) 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.
(d) 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.
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