Tennessee Code Annotated

Tenn. Code Ann. § 20-5-107 (2026)

Prosecution of action by representative or surviving spouse or next of kin

✓ current as of May 2026 Cite as: Tenn. Code Ann. § 20-5-107 (2026)

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(a) The action may be instituted by the personal representative of the deceased or by the surviving spouse in the surviving spouse's own name, or, if there is no surviving spouse, by the children of the deceased or by the next of kin; also, without the consent of the personal representative, either may use the personal representative's name in bringing and prosecuting the suit, on giving bond and security for costs, or in the form prescribed for paupers. The personal representative shall not, in such case, be responsible for costs, unless the personal representative signs the prosecution bond in an individual capacity.

(b) In no event shall a parent be permitted to recover through an action commenced pursuant to subsection (a) until all child support arrearages, together with interest on the child support arrearages, at the legal rate of interest computed from the date each payment was due, have been paid in full to the parent ordered to receive the support or to the parent's estate if deceased.

(c) Notwithstanding any law to the contrary, a parent who has intentionally refused or neglected to pay any support for a child for a two-year period, or for the life of the child, whichever is less, when subject to a court order requiring the payment of child support and who has intentionally refused or neglected to contact the child or exercise visitation during such period, shall not be permitted to recover through an action commenced pursuant to subsection (a) and § 20-5-106.

(d) Nothing in this section shall be construed to prevent the institution of an action by a child with respect to the death of a parent.

(e)
- (1) Notwithstanding any other law to the contrary, the right to institute and the right to collect any proceeds from a wrongful death action granted by this section to a surviving spouse shall be waived, if the children or next of kin establish the surviving spouse has abandoned the deceased spouse as described in § 36-4-101(a)(13) or otherwise willfully withdrawn for a period of two (2) years.
- (2) If the period of two (2) years has passed since the time of abandonment or willful withdrawal then there is created a rebuttable presumption that the surviving spouse abandoned the deceased spouse for purposes of this section.
- (3) In an action under this section, the child or next of kin shall serve the surviving spouse with process as provided in the Tennessee Rules of Civil Procedure or by constructive service as may otherwise be provided by law.
- (4) In no event shall any action for wrongful death abate, or the statute of limitations bar, an action solely as a result of a finding the surviving spouse's rights are waived. Instead the court shall substitute the proper party.

Code 1858, § 2292 (deriv. Acts 1849-1850, ch. 58, §§ 1, 2; 1851-1852, ch. 17); Acts 1871, ch. 78, § 2; Shan., § 4026; mod. Code 1932, § 8237; Acts 1975, ch. 284, § 2; T.C.A. (orig. ed.), §20-608; Acts 1994, ch. 939, §1; 2003 , ch. 25, § 1; 2011 , ch. 366, § 2.

Notes of Decisions

Cited in 35 cases (9 in the last 5 years), 1984–2026 · leading case: Kline v. Eyrich

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Kline v. Eyrich (2002) tenn · cites it 3× “See Tenn.Code Ann. § 20-5-107; Foster, 813 S.”

Foster v. Jeffers (1991) tennctapp · cites it 6× “However, T.C.A. § 20-5-107 is not the sole statute governing wrongful death actions in Tennessee.”

Mangrum v. Owens (1995) tennctapp · cites it 8× “Moreover, at the time the controversy in the instant case arose, T.C.A. § 20-5-107 provided in pertinent part: Prosecution of action by representative or surviving spouse or next of kin.”

Busby v. Massey (1984) tenn · cites it 4× “T.C.A. § 20-5-107 provides: “20-5-107. Prosecution of action by representative or surviving spouse or next of kin.”

Brittany Noel Nelson v. Charles W. Myres (2018) tenn · cites it 3× “See Tenn. Code Ann. § 20-5-107 ("The action may be instituted by the personal representative of the deceased or by the surviving spouse in the surviving spouse's own name, or, if there is no surviving spouse, by the children of the deceased or by the next of kin[.”

Holliman v. McGrew (2009) tennctapp · cites it 2× “Tenn. Code Ann. § 20-5-107 ; Johnson v. Metro.”

Epperson v. City of Humboldt (2015) tnwd · cites it 2× “An action “may be instituted by the personal representative of the deceased .”

In Re Estate of Dobbins (1998) tennctapp · cites it 2× “1991), recognized that “[t]he wrongful death statutes taken together set forth the priorities among those persons entitled by T.C.A. § 20-5-107 to bring a wrongful death action.”

Edgar Foster, Individually and on Behalf of Wife, and Stanley Turner v. St. Joseph Hospital, Mahir R. Awdeh, M.D., Raj. (2004) tennctapp “§ 20-5-107. Amending the com *422 plaint to substitute a surviving spouse for the decedent’s administrator does not create a new cause of action.”

Barnhart v. American Furniture Warehouse Co. (2013) coloctapp · cites it 2× “See Tenn. Code Ann. § 20-5-107 (2018); Whitley, 299 F.”

Johnson v. Metropolitan Government of Nashville & Davidson County (1984) tenn · cites it 2× “We find unpersuasive the reasoning of the Court of Appeals that necessary steps could not be taken to prosecute the wrongful death claim until the appointment of an administrator.”

Martin v. Correction Corp. of America (2005) tnwd · cites it 2× “…surviving spouse ..., or, if there is no surviving spouse, by the children of the deceased or by the next of kin .... Tenn.Code Ann. § 20-5-107(a).”

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— Tenn. Code Ann. § 20-5-107(a) — 6 cases

Martin v. Correction Corp. of America (2005) tnwd “…surviving spouse ..., or, if there is no surviving spouse, by the children of the deceased or by the next of kin .... Tenn.Code Ann. § 20-5-107(a).”

Merrell v. City of Harriman, Tennessee (TV1) (2023) tned