Tennessee Code Annotated

Tenn. Code Ann. § 31-4-101 (2026)

Right to elective share

✓ current as of May 2026

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(a)

(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.

Acts 1977, ch. 25, § 4; T.C.A., § 31-601; Acts 1985, ch. 140, §28; 1997 , ch. 426, § 17; 2001, ch. 400, §3; 2004, ch. 866, §2; 2007 , ch. 13, §§ 1- 3.

Notes of Decisions

Cited in 35 cases (1 in the last 5 years), 1984–2021 · leading case: In re: Est. of Harold Jenkins, 8 S.W.3d 277 (Tenn. Ct. App. 1999).

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In re: Est. of Harold Jenkins, 8 S.W.3d 277 (Tenn. Ct. App. 1999). · cites it 42× “Tenn.Code Ann. § 31-4-101 (Supp.1993). When construing this statute, we must attempt to ascertain and give effect to the intent of its drafters, looking primarily to the natural and ordinary meaning of the words used.”

In Re Est. of Jones, 183 S.W.3d 372 (Tenn. Ct. App. 2005). · cites it 10× “The trial court treated the sisters’ claims as “secured debts” and ordered that these claims, being $17,500 in total, be deducted as a part of the net estate calculation under Tenn.Code Ann. § 31-4-101(b) (Supp.2004).”

In Re Est. of Soard, 173 S.W.3d 22 (Tenn. Ct. App. 2005). · cites it 17× “The parties differ as to the correct interpretation of Tenn. Code Ann. § 31-4-101 (2001), the statute setting forth the criteria pursuant to which a surviving spouse’s elective share is computed.”

Williams v. Comm'r, 103 T.C. 451 (Tax Ct. 1994). · cites it 15× “1993), the elective share must be reduced by a pro rata share of D's secured debts in determining the maximum allowable marital deduction under sec.”

Phipps v. Watts, 781 S.W.2d 863 (Tenn. Ct. App. 1989). · cites it 10× “The right of a dissenting spouse to take an elective share of the estate is found in Tenn.Code Ann. § 31-4-101 (1988): (a) A decedent’s surviving spouse has the right to elect to take an elective share.”

Clayton v. Morris, 104 S.W.3d 855 (Tenn. Ct. App. 2002). · cites it 6× “Calculation of the net estate is pursuant to T.C.A. § 31-4-101(b), which provides: The value of the net estate includes all of the decedent’s real and personal property subject to disposition under the provisions of the decedent’s will or the laws of intestate succession,…”

Daugherty v. Daugherty, 784 S.W.2d 650 (Tenn. 1990). · cites it 2× “T.C.A. § 31-4-101. The trial court found that the husband, as the surviving spouse, was an heir-at-law of the deceased and entitled to an elective share of one-third of one-half of the undivided interest in the parcels of real estate held by the parties as tenants-in-common…”

Est. of Williams v. Huddleston, 938 S.W.2d 415 (Tenn. 1997). · cites it 12× “1996), the widow filed a petition exercising her right to elect against the decedent’s will and take an elective share as authorized by Tenn.Code Ann. § 31-4-101 (Supp.1996). The probate court calculated the elective share by first subtracting from the sum of the total estate…”

In Re the Est. of Davis, 184 S.W.3d 231 (Tenn. Ct. App. 2004). · cites it 2× “Davis is not a “surviving spouse” within the meaning of section 31-4-101, Tennessee Code Annotated.”

Williams v. Williams, 868 S.W.2d 616 (Tenn. Ct. App. 1992). · cites it 4× “Since we have found that the ante-nuptial agreement was ineffective, we further find that Alice Williams was a surviving spouse under T.C.A. § 31-4-101. The respondent argues, however, that even if the petitioner is a surviving spouse within the meaning of this statute, the in…”

Cantrell v. Est. of Cantrell, 19 S.W.3d 842 (Tenn. Ct. App. 1999). · cites it 2× “§ 30-2-102 (year’s support); and Tenn.Code Ann. § 31-4-101, et seq. (elective share).”

Uhrig v. Pulliam, 713 S.W.2d 649 (Tenn. 1986). · cites it 4× “As previously stated, both courts below held that the provisions of the agreement were sufficient to waive any claim by plaintiff for an elective share as a surviving widow pursuant to T.C.A. § 31-4-101. The Court of Appeals pointed out that in T.”

Show all 35 citing cases →

— Tenn. Code Ann. § 31-4-101(a) — 5 cases

In re: Est. of Harold Jenkins, 8 S.W.3d 277 (Tenn. Ct. App. 1999). “Tenn.Code Ann. § 31-4-101 (Supp.1993). When construing this statute, we must attempt to ascertain and give effect to the intent of its drafters, looking primarily to the natural and ordinary meaning of the words used.”

In Re Est. of Soard, 173 S.W.3d 22 (Tenn. Ct. App. 2005). “The parties differ as to the correct interpretation of Tenn. Code Ann. § 31-4-101 (2001), the statute setting forth the criteria pursuant to which a surviving spouse’s elective share is computed.”

Est. of Williams v. Huddleston, 938 S.W.2d 415 (Tenn. 1997). “1996), the widow filed a petition exercising her right to elect against the decedent’s will and take an elective share as authorized by Tenn.Code Ann. § 31-4-101 (Supp.1996). The probate court calculated the elective share by first subtracting from the sum of the total estate…”

In Re: Est. of Mary A. Grass (Tenn. Ct. App. 2008).

In Re: Est. of Frank Soard (Tenn. Ct. App. 2004).

— Tenn. Code Ann. § 31-4-101(a)(1) — 2 cases

Will A. Cantrell v. Allen Cantrell (Tenn. Ct. App. 2004).

Roger Clayton Morris v. Lola Jane Morris (Tenn. Ct. App. 2002).

— Tenn. Code Ann. § 31-4-101(a)(2) — 1 case

Duncan v. Crawford, Maryville, For The (Tenn. Ct. App. 1996).

— Tenn. Code Ann. § 31-4-101(b) — 14 cases

In Re Est. of Jones, 183 S.W.3d 372 (Tenn. Ct. App. 2005). “The trial court treated the sisters’ claims as “secured debts” and ordered that these claims, being $17,500 in total, be deducted as a part of the net estate calculation under Tenn.Code Ann. § 31-4-101(b) (Supp.2004).”

Phipps v. Watts, 781 S.W.2d 863 (Tenn. Ct. App. 1989). “The right of a dissenting spouse to take an elective share of the estate is found in Tenn.Code Ann. § 31-4-101 (1988): (a) A decedent’s surviving spouse has the right to elect to take an elective share.”

Clayton v. Morris, 104 S.W.3d 855 (Tenn. Ct. App. 2002). “Calculation of the net estate is pursuant to T.C.A. § 31-4-101(b), which provides: The value of the net estate includes all of the decedent’s real and personal property subject to disposition under the provisions of the decedent’s will or the laws of intestate succession,…”

— Tenn. Code Ann. § 31-4-101(c) — 10 cases

In Re: Est. of Edward Alan Ladd (Tenn. Ct. App. 2020).

In Re: Est. of Mary A. Grass (Tenn. Ct. App. 2008).

Roger Clayton Morris v. Lola Jane Morris (Tenn. Ct. App. 2002).

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