Memphis, TN asked in Estate Planning and Probate for Tennessee

Q: If a will can't be found and the estate goes to probate, does the length of marriage factor into what a spouse receives?

For example, if your 75 year old father got married a year before he died, will probate court take into consideration that his "wife" was only so for a year, where as his money and assets were acquired over the lifetime of his 40plus year marriage to the mother of his two grown children, or should those children expect to have to buy out the "wife's" share of the home they grew up in and their mother died in?

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2 Lawyer Answers
Anthony M. Avery
PREMIUM
Anthony M. Avery
Answered
  • Estate Planning Lawyer
  • Knoxville, TN
  • Licensed in Tennessee

A: Surviving Spouse is a Heir At Law under TN's Intestate Succession Statute. Also a Surviving Spouse has various rights in the Decedent's Estate under the Probate Statutes. You are confused with Divorce laws.

Nina Whitehurst
PREMIUM
Nina Whitehurst
Answered
  • Estate Planning Lawyer
  • Crossville, TN
  • Licensed in Tennessee

A: That is a good question because the surviving spouse's share is different depending on whether or not there is a will. If there is no will, like my colleague Mr. Avery stated, the surviving spouse's share is determined by the laws of intestate succession. At the risk of oversimplifying, because more facts are needed, if the decedent had children, then the surviving spouse gets either half or one-third of the estate, depending on how many children there are/were.

If the decedent had a will, then the surviving spouse has the choice of either taking under the will or electing against the will. If the surviving spouse elects against the will, then his or her share is indeed determined by the length of the marriage, ranging from a low of 10% for short marriages (less than three years) to a high of 40% for long marriages (nine years or more) with other percentages in between for in between marriage lengths.

So the answer is no, if a will cannot be found, then the spouse's share is not determined by the length of the marriage.

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