In Tennessee, the person making a will is referred to as the testator and must be at least 18 years old and mentally competent, which is legally referred to as being "of sound mind." A will must be in writing and the testator must sign it at the end of the document; the will must also be signed in the presence of two adult witnesses, whose purpose is to acknowledge, in writing, the testator's identity and mental competence.
Generally, a testator is free, through a valid will, to bequeath his property to any friend, family member or charitable organization. Tennessee law, however, protects a surviving spouse, who is always entitled to a percentage of the deceased's estate. If a spouse is omitted from a testator's will -- whether inadvertently or intentionally -- the disinherited spouse can claim her elective share. Tennessee law grants a surviving spouse nine months' time from the deceased's death to seek an elective share from the court. In Tennessee, the amount of the elective share is based on the length of the marriage. If the marriage lasted for less than three years, the elective share is 10 percent of the estate. If the marriage lasted between three and six years, the elective share is 20 percent, and if the marriage lasted between six and nine years, the elective share is 30 percent. Finally, if the marriage lasted more than nine years, the surviving spouse receives a share of 40 percent.
Spousal Intestacy Rights
When a person dies without a will, his estate passes to beneficiaries through Tennessee's intestacy law. A surviving spouse is always the first one who is entitled to inherit. If there are no children to inherit, the spouse will receive the entire estate. If there are children, the spouse will receive the greater of one-third of the estate or an equal share with the children. For example, if there is only one child, the spouse and child would each inherit half of the estate.
In Tennessee, if the deceased is not survived by a spouse, the children become the first to inherit and entitled to equal shares of the estate. If there are two children, each child inherits half of the estate. When there are four children, each child inherits one quarter of the estate. When the deceased is survived by a spouse and children, each beneficiary inherits equal shares. Therefore, if the spouses had four children together, the surviving spouse and each child would inherit one-fifth of the estate. Also, according to Tennessee law, children are entitled to inherit the same percentage, whether they are children of the decedent and surviving spouse, or children of the deceased and a prior spouse. Children of a prior spouse do not receive a lesser inheritance, if there is a surviving spouse alive to inherit. Each party will still inherit equal shares. However, a prior spouse is not entitled to any share of the estate, because divorce extinguishes any prior spouse's claim to an intestate share.
When there is no surviving spouse or children, a deceased's surviving parents are the first to inherit. The parents inherit equal shares, if both are still living. If not, the surviving parent gets the entire estate. When the deceased is not survived by parents, Tennessee's intestacy law permits the deceased's siblings to claim the estate in equal shares. If there are no siblings, more distant relatives can inherit, including nieces and nephews, cousins, and aunts and uncles.