“Where there’s no will, there’s no say”
Approximately 60% of Americans are said to die “intestate”.1 Simply put, this means that the deceased individual (i.e. the “decedent”) did not create a legally valid and enforceable will during his or her lifetime. Nevertheless, the decedent’s estate must be distributed in some manner. In general, most state intestacy laws favor a decedent’s spouse first, then children, followed by parents, and more remote relatives.
Tennessee Intestacy Laws
In most cases, the law of the state where a decedent was domiciled at death governs the distribution of the decedent’s personal property. For real property, the law of the state where the property is located governs its distribution. Therefore, if you reside in Tennessee or own real property within the state and fail to make a will, your property will be distributed according to Tennessee intestacy laws. Precisely how property is distributed depends on several factors, including the decedent’s marital status and whether they have children.
Outlined below are several common life scenarios that illustrate how a decedent’s property is distributed when certain factors are present.
- If the decedent is unmarried and does not have children, the estate will be distributed to the decedent’s parents. If the decedent is not survived by either parent, the estate passes to the decedent’s siblings.2
- If the decedent is unmarried and has a child out of wedlock, then a parent-child relationship must be established before the child can take through intestate succession from a deceased parent.3
- A person born out of wedlock is considered the child of the mother by default.4 However, for an unmarried father to establish a parent-child relationship he must either: (i) Marry the child’s mother5; or (ii) establish paternity and openly treat the child as his own and not refuse to support the child.6
- If the decedent was married with no children, then the spouse will receive the entire estate.7
- If the decedent was married with one child, then the spouse and the child each will receive ½ of the estate.8
- If the decedent was married with more than one child, then the spouse will receive 1/3 of the estate, with the remainder split evenly amongst the children.9
- In Tennessee for the purposes of intestacy distribution, half siblings are treated the same as whole siblings.10
- Adopted children are entitled to the same estate share as biological children.11
- If the decedent’s spouse died before the decedent, the estate will be divided amongst the decedent’s children evenly.12
- If a child died before the decedent, the child’s intestate share can be passed on to his or her children through a process called “representation”.13
- If a predeceased child does not have any children to take via representation, his/her share will be divided amongst the decedent’s surviving children.14
- If the decedent is not survived by any relative, then the entire estate “escheats” to the state.15
Note, these default rules do not account for individual idiosyncrasies and may lead to a distribution of property that is contrary to a decedent’s expressed desires. By way of example, some individuals wish to leave property to charities, colleges, or establish funds for specific purposes. Therefore, to distribute an estate in a way that truly reflects an individual’s disposition, it is imperative that he/she create a will or utilize a non-probate will substitute, like a trust.
Creating a legally valid and enforceable will is no small task and should be accomplished with the assistance of a qualified estate planning attorney. If you feel that a Cole Law Group estate planning attorney in Nashville may be the right fit for you, please call us at (615) 490-6020 today to discuss a will, trust, or probate matter.
1 Barbranda Walls, Haven’t Done a Will Yet, AARP, Feb. 24, 2017.
2 T. C. A. § 31-2-104(b)(2)
3 T. C. A. § 31-2-105(a)
4 T. C. A. § 31-2-105(a)(2)
5 T. C. A. § 31-2-105(a)(2)(A)
6 T. C. A. § 31-2-105(a)(2)(B)(i-ii)
7 T. C. A. § 31-2-104(a)(1)
8 T. C. A. § 31-2-104(a)(2)
10 T. C. A. § 31-2-107
11 T. C. A. § 36-1-121(b)
12 T. C. A. § 31-2-104(b)(1)
15 T. C. A. § 31-2-110
About the Author:
Hailey Ragsdale is a 2nd year law student at Belmont University College of Law. She is a Tennessee native and first-generation college student with a bachelor’s degree in Political Science from Lipscomb University. During the 111th Tennessee General Assembly, Hailey served as a legislative intern for Health Committee Chairman Bryan Terry. She has also interned for Marsha Blackburn and LifePoint Health’s government relations department. She has held the position of law clerk at Cole Law since Fall 2020 and is looking forward to graduating from Belmont Law in the Spring of 2022.