If you fear for your immediate safety or are in danger due to domestic violence, do not wait—call 911 right away. Law enforcement can intervene to ensure your protection and help you access emergency resources, such as shelter or medical care. While seeking an Order of Protection is an important legal step, your first priority should always be your immediate safety and the immediate safety of your children. The police can also assist you in filing for an Order of Protection once you are safe. If you are ever unsure about your safety, don’t hesitate to call for help before taking any legal action 

Divorce can be a challenging process where emotions are heightened, especially when it involves concerns about safety or abuse. In Tennessee, one tool to ensure the safety of a party during a divorce is petitioning the court for an Order of Protection. For individuals in need of immediate legal relief from domestic abuse, stalking, or threats of harm, an Order of Protection offers crucial protections. 

What is an Order of Protection? 

An Order of Protection is a court-issued document designed to prevent an abuser from continuing harmful behavior. The Order of Protection can grant various protections, such as prohibiting the abuser from contacting or approaching you, giving you exclusive possession of your residence, awarding you temporary sole custody of minor children, ordering counseling or financial support, directing the care of pets, etc.¹  

However, these protections do not go into effect until the abuser has been served with a copy of the ex parte Order of Protection.² Once they have been served, if your abuser violates the order of protection, they can be arrested. 

Who can file for an Order of Protection? 

In Tennessee, any domestic abuse victim, stalking victim, or sexual assault victim who has been subjected to, threatened with, or placed in fear of, domestic abuse, stalking, sexual exploitation of a minor, sexual assault, or a human trafficking offense may file for an order of protection.³ 

It is important to note that anyone who has experienced sexual assault or stalking may file for a Petition for an Order of Protection, regardless of your relationship with the perpetrator.⁴ However, in order to meet the statutory requirements for an Order of Protection for domestic abuse, there must be a relationship between you and the abuser, i.e. current or former spouses, people who live together or have lived together in the past, people who are dating or have dated, people who have had sexual relationships with the other, relatives by blood or adoption or previous marriage, etc.⁵ 

Under Tennessee law, there are four categories as to what can constitute domestic abuse⁶ that would warrant an Order of Protection: 

1. Purposefully physically hurting or attempting to hurt someone physically (accidents do not count)  

2. Making the person fear physical harm or physical restraint, or physically restraining someone 

3. Maliciously damaging someone’s personal property 

4. Intentionally financially abusing⁷ someone, meaning behavior that is coercive, deceptive, or that unreasonably controls or restrains a person’s ability to acquire, use, or maintain economic resources to which the person is entitled 

1. This includes using coercion, fraud, or manipulation to restrict a person’s access to money, assets credit, or financial information; unfairly utilizing a person’s economic resources to gain an advantage; or exerting undue influence over a person’s financial behavior or decisions, including forcing default on joint or other financial obligations, etc. 

How to File for an Order of Protection? 

To request an Order of Protection in Tennessee, a person must file a Petition for an Order of Protection in the county where the abuser lives, the county where the abuse occurred, or the county in which you live if your abuser lives outside of the state of Tennessee.⁸ It is important when filing to give the court as much information as possible regarding what you have experienced.  

Each county has slightly different procedures for filing a Petition. Generally speaking, this can be done at the county’s General Sessions’ Clerk’s Office. If it is after hours, your local police should be able to assist you in filing your petition. You can also retain an attorney and request that they file a Petition for an Order of Protection on your behalf. 
 

Should I wait to request an Order of Protection until after I have filed for a divorce? 

An Order of Protection can have significant implications during a divorce, particularly in cases involving children. If children are involved, the court may take into account any history of domestic violence when determining custody and visitation. Generally speaking, the longer you wait to file an Order of Protection, the more likely a judge will question why you waited. However, there are pros and cons as to when you should decide to file for an Order of Protection, and a skilled family law attorney can help navigate the complex process and protect your rights. 

Should I retain an attorney? 

Whether you are seeking an Order of Protection or defending yourself against one, retaining experienced legal counsel is critical. The stakes can be high in divorce cases, and this is especially true when domestic violence or allegations of abuse are involved.  

Additionally, it is important to note that statutorily, if you are successful in obtaining an Order of Protection, the Court will also order the abuser to pay your court costs, filing fees, litigation taxes, and attorney’s fees.⁹ 

If you’re considering filing for divorce in Tennessee and have concerns about domestic abuse or harassment, do not hesitate to seek legal advice. An Order of Protection may be an essential step in protecting yourself and your family.  Schedule a consultation with a trusted attorney today to discuss your case and explore your options. Taking this crucial step can help ensure that you have the support and guidance necessary to navigate the legal process and protect your interests. Contact Cole Law now at 615-490-6020. 

1 T.C.A. § 36-3-606

2 T.C.A. § 36-3-611

3 T.C.A. § 36-3-602

4 T.C.A. § 36-3-601(11)-(12)

5 T.C.A. § 36-3-601(5)

6 T.C.A. § 36-3-601(1)

7 T.C.A. § 36-3-601(6)

8 T.C.A. § 36-3-602(c)

9 T.C.A. § 36-3-117

Cole Law is proud to announce that Managing Shareholder Andy Goldstein has been selected to the Super Lawyers 2023 Mid-South Rising Stars list. Each year, no more than 2.5 percent of lawyers in Tennessee are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

With the average age of marriage increasing, people are bringing more and more assets into a marriage. With that in mind, you should consider how to protect those assets in the event of a divorce. People have a tendency to scoff at the idea of a prenuptial agreement, also known as an antenuptial agreement or ‘prenup.’ Prenups are viewed as a sign that you do not think your marriage will work out or that you do not trust your future spouse. But I will ask you this: Would you rather decide how your assets and liabilities are divided when you are in love with your partner and have each other’s best interests at heart, or would you rather wait to have that discussion until the worst-case scenario has occurred and you now despise each other?

What goes into a prenup?

A prenup helps ensure that you and your future spouse have a clear understanding of the division of finances and property if a divorce were to occur. It can also be used to outline how income will be utilized during the marriage, i.e. who pays what bills. In addition, a prenup affords you the opportunity to discuss various scenarios, such as whether you will receive additional finances at the time of divorce if you stayed home to take care of the kids.

If applicable, a prenup might also cover how business assets will be divided, how future inheritances will be divided, how children from a prior marriage will be taken care of, who is responsible for previous debts, who is responsible for debts incurred during the marriage, if any assets or finances will be kept separate from the marital estate, and how retirement or pension plans will be divided.

Sometimes a court will not follow the prenup during the divorce… why?

You had a bad lawyer. Kidding. However, a good lawyer will advise you that there are certain requirements a court will look at when deciding whether a prenup is valid, including the following:

1. Did you disclose all your assets? If you were hiding assets from your future spouse, then they did not know what they were truly agreeing to when signing the prenup. Therefore, it is unfair to hold them to that agreement.
2. Is the agreement unconscionable? What people define as fair might not be the same, but if a prenup is heavily weighted in favor of one spouse a court might find it invalid. This can be especially true when there is financial disparity between the parties, e.g. a millionaire with five lawyers talked their poor future spouse who could not afford an attorney to sign an agreement where the millionaire gets the majority of the assets if they ever divorce.
3. Did each person have time to read and understand the agreement without pressure? If you handed your spouse a prenup right as you were about to walk down the aisle, that can be viewed as duress. If you are considering a prenup, make sure you prepare it well in advance of the wedding.
4. Did each party sign and notarize the agreement? It is hard to hold your spouse to an agreement if they refused to sign it. No signature = no consent to be bound by the terms.
5. Did you agree that neither party should pay child support? It is unlikely a court would enforce this provision, because courts want children to be taken care of. However, the court may still find the rest of the agreement valid and binding.

Tennessee’s public policy favors prenuptial agreements.[i] These agreements are generally enforceable when entered into freely, knowledgeably, in good faith, and without the exertion of duress or undue influence.[ii]

How do I get my future spouse to sign a prenup?

For reasons discussed above, bring this conversation up as early as possible. Remind your partner that the goal is not to get a divorce, but that you want to make sure you are both protected in the event of a worst-case scenario. Take the time to talk through your concerns; after all, they say strong communication is the basis of a healthy marriage. Take the time to consider where the other person is coming from. And if that doesn’t work, consider sending them this article.

If you or your future spouse is considering a prenuptial agreement, you should seek the advice of a knowledgeable Nashville divorce attorney. The professionals at Cole Law Group have the knowledge and experience to assist you with any questions you may have about protecting your interests. Please contact us at (615) 490-6020 to request a consultation.

[i] Law v. Law, No. E2021-00206-COA-R3-CV, 2022 Tenn. App. LEXIS 166 (Ct. App. Apr. 26, 2022)

[ii] Tenn. Code Ann. § 36-3-501

When a couple seeks to end their marriage in Tennessee, the termination of the marriage is generally accomplished through divorce. The divorce process usually commences with one spouse filing for divorce in a Tennessee court of competent jurisdiction. Once the divorce litigation is initiated, it will progress in either an uncontested or contested fashion. In uncontested divorce cases, the divorce is finalized upon the court approving and incorporating a Marital Dissolution Agreement (and a Permanent Parenting Plan if there are minor children born of the marriage) into a final judgment of divorce. In contested divorce cases, the parties are unable to agree on a Marital Dissolution Agreement (and Permanent Parenting Plan if applicable), and the divorce is finalized by a trial judge upon the entry of a final judgment of divorce after a trial.

There is, however, a rare alternative to divorce: annulment. Annulment is only available if grounds for annulment existed at the time a couple married. In other words, there must have been a defect in the marriage from its inception that renders it subject to annulment, and the spouse seeking the annulment has the burden to prove that the defect existed at the time of the marriage. Simply put, grounds for annulment in Tennessee do not arise after a couple marries, although they may be grounds for divorce.

In Tennessee, marriages subject to annulment are either void or voidable.

A void marriage is one that can be annulled during the lifetimes of the couple, but may also be challenged after the death of either or both of the spouses. If a marriage is void, it is invalid from the moment of its inception – sometimes, this is referred to as being void ab initio. Even if a marriage is void, it is still generally useful to bring a formal annulment proceeding in a court of competent jurisdiction so the court can make clear the marital status of the parties and adjudicate any issues related to children or property. Marriages that are prohibited by law are void.

A voidable marriage, however, is a marriage that is valid unless and until it is annulled. Importantly, a voidable marriage can only be annulled during the lifetime of the parties. If one of the spouses in a voidable marriage dies, the marriage will no longer be able to be annulled, and it will thereafter be considered a valid marriage even though it may have been voidable before the death of one of the spouses.

Under Tennessee law, there are several grounds for annulment, and these grounds are further divided between void marriages and voidable marriages.

A marriage is void from the beginning under the following circumstances:

1. when either party was already lawfully married (bigamy);
2. when the parties are within prohibited degrees of kinship, closer than first cousins (incest);
3. when, for any other reason, the marriage was prohibited by law, and its continuance is in violation of law.^[i]

A marriage is voidable from the beginning under the following circumstances:

1. when either party was insane;
2. when the complaining party was under duress;
3. when one of the parties was under the age of consent at the time of the marriage;
4. when the consent to marry was obtained by force, fraud, or was given by mistake;
5. when the defendant was impotent;^{[ii] [iii]}

Although many couples may prefer for their marriage to end in annulment rather than divorce, in Tennessee the overwhelming majority of marriages end in divorce rather than annulment. This is partially because, although annulment is possible or even required under certain circumstances, the grounds for annulment are often narrowly construed, and most couples simply do not meet the necessary legal criteria to have their marriage annulled.

If you believe that your marriage is void or voidable and that annulment may apply to your marriage, you should seek the advice of a knowledgeable Nashville divorce attorney as quickly as possible. Annulment plays an important role in domestic relations law in Tennessee, and even if annulment is found to not apply in your particular situation, it may lead you to analyze other factors that could be relevant to divorce. Contact Cole Law today at 615-490-6020 to schedule a consultation and learn more about whether annulment may be an option for you.

ABOUT THE AUTHOR: Andy Goldstein

Andy Goldstein is an Associate Attorney at Cole Law Group. He is a graduate of Belmont University College of Law and is admitted to practice in Tennessee state courts, the United States District Court for the Middle District of Tennessee, the United States District Court for the Western District of Tennessee, the United States District Court for the Eastern District of Tennessee, the United States Court of Appeals for the Sixth Circuit, and the Immigration Courts of the Executive Office for Immigration Review (EOIR). Andy focuses his practice in the areas of Family Law, Defamation & Privacy, Probate, and Complex Civil Litigation. Cole Law Group clients benefit from Andy’s passion for the law and dedication to serving them well.

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an experienced lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

^[i] Coulter v. Hendricks, 918 S.W.2d 424, 426 (Tenn. Ct. App. 1995) (quoting 2 Gibson’s Suits in Chancery § 1147 note 10 (5th ed. 1956)) (citations omitted).

^[ii] For the ground of impotence to sustain an annulment under Tennessee law, one spouse must be physically unable to have intercourse, the impotence has to be permanent, and the impotence must have existed before the marriage.

^[iii] Coulter v. Hendricks, 918 S.W.2d 424, 426 (Tenn. Ct. App. 1995) (quoting 2 Gibson’s Suits in Chancery § 1147 note 10 (5th ed. 1956)) (citations omitted).

Is Operating a Business Out of Your Home Illegal in Nashville? 

With over 1,600 home-based businesses operating in the city of Nashville, Tennessee, could it be true that many of them are illegal?¹ Section 17.16.250 of Title 17 of the Metropolitan Code of Laws that governs residential zoning ordinances contains a provision regarding “home occupations”.² The term home occupations refers to the practice of individuals operating small businesses from their residential homes. The provision prohibits the home occupations, or home businesses, from performing services for customers on their residential property. For many home businesses, customers and customer interaction are the sole source of profit. In “Music City,” a community full of artists, musicians, and other creative professionals, this ordinance presents several problems for those wanting to teach music and art or even to create music and art with other professionals in the industry.  

This exact zoning ordinance presented an issue for a local Nashville music producer, Lij Shaw. Since 2015, Mr. Shaw has been in a battle with the City of Nashville to shut down the prosperous music studio located in his residential home. Mr. Shaw first received a letter from the city demanding his home music studio be closed and no longer open for business. Two years later, Mr. Shaw partnered with Pat Raynor, an individual running a hair salon out of her home and protested the residential zoning ordinance in court. The legal battle between Mr. Shaw and the City of Nashville was recently heard by the Supreme Court of Tennessee. The decision of the Supreme Court of Tennessee will not be released for several months.  

Can Owners Conduct Business From Their Home During Covid-19?  

As the COVID-19 pandemic persisted, the Nashville Metropolitan community was afforded the opportunity to operate small businesses from their residential homes, with a newly added benefit. On July 7, 2020, Nashville Metro Council approved the Home Occupation Modernization Bill (bl2019-48) in order to allow small business owners to continue to profit from their businesses in the safety and security of their own homes. This ordinance additionally allows business owners in Davidson County, for the very first time in the county’s history, to engage with customers in the business owner’s home legally. However, the Bill contains several restrictions as follows: a restriction that no more than five employees may reside within the dwelling at a home occupation location;  a restriction that no more than one part-time or full-time employee not living within the dwelling may work at the home business; that there can be a maximum of six visits by customers per day; and no more than three customer trips per hour are allowed at the site of the home business.  

Why Should Nashville Small Business Owners Care? 

In the current COVID-19 landscape, the opportunity to run a business out of your home and be able to serve customers at that business is highly valuable. Businesses based in a residential home afford individuals with an easily attainable avenue to entrepreneurship. It also presents small business owners with a much more cost-effective way to conduct business, avoiding the expenditure of renting or purchasing a commercial space. Reducing the cost to start up a business can be a great asset to the longevity of the business and help reduce the risks associated with starting a business.  

The Home Occupation Modernization Bill is set to expire in January of 2023. Upon expiration, it will again be illegal for home businesses to serve customers on site in a residential home. However, with the help of Mr. Shaw, Mrs. Raynor, and other like-minded individuals, the residential zoning ordinance prohibiting customers to enter and to be served by home businesses may no longer exist.  

If you are thinking about starting a business, we can help. Just call an Entrepreneurial Business Attorney at Cole Law Group in Brentwood (615-490-6020) and we will be happy to speak with you about your new business venture.  

____________________________ 

1 https://ij.org/report/finding-american-dream-home; see also http://www.tnledger.com/editorial/article.aspx?id=52959. 

2 Metro. Code § 17.16.250(D)(1).

On November 12, 2021, Tennessee Governor Bill Lee signed a new law addressing several issues related to the response to the 2019 Novel Coronavirus, SARS-CoV-2, coronavirus disease (COVID-19), and COVID-19 vaccinations. The new law became effective immediately upon being signed by Gov. Lee on November 12, 2021. Among other things, the new law significantly curtails the government’s ability to impose mask mandates and prohibits the government and most private businesses from compelling individuals from providing proof of vaccination if the person objects to receiving a COVID-19 vaccine for any reason. This article discusses some of the important changes the new law brings to public policy surrounding the response to the COVID-19 pandemic throughout Tennessee. 

At the outset, some of the most significant changes brought about by the new law concern restrictions on the ability of government and private businesses to require individuals to provide proof of having received a COVID-19 vaccination. Specifically, the new law states that “[a] private business, governmental entity, school, or local education agency shall not compel or otherwise take an adverse action against a person to compel the person to provide proof of vaccination if the person objects to receiving a COVID-19 vaccine for any reason.”¹ Importantly, the new law contains a broad definition of “private business,” and includes individuals, sole proprietorships, corporations, limited liability companies, partnerships, trusts, associations, and non-profit entities.² In addition, the new law contains a broad definition of “adverse action,” and includes discrimination “against a person by denying the person employment, privileges, credit, insurance, access, products, services, or other benefits.”³ As a result, under the new law, most private businesses and governmental entities in Tennessee are prohibited from requiring any individual from providing proof of vaccination in the event the person objects to receiving a COVID-19 vaccine for any reason, and this prohibition is applicable to employees, customers, or just about any individual who accesses products or services of a private business or covered governmental entity. 

Nevertheless, the new law does contain several important exceptions to the general prohibition of requiring proof of having received a COVID-19 vaccination. The new law does not prevent the implementation of COVID-19 vaccine mandates for Medicare and Medicaid providers, or assisted-care living facilities, federal government contractors or subcontractors, schools, or employers that submit notice in writing to the comptroller of the treasury that compliance with the new law would result in a loss of federal funding.⁴ Moreover, the new law does not prohibit “a place of entertainment” in Tennessee from requiring proof of a negative COVID-19 test in order to gain admission, or to allow a person to voluntarily provide proof of vaccination or proof of COVID-19 antibodies in lieu of presenting a negative COVID-19 test in order to gain admission to a “place of entertainment.”⁵ 

The new law also addresses the implementation of mask mandates throughout much of Tennessee. Under the new law, with certain exceptions, governmental entities are no longer permitted to “require a person to wear a face covering as a condition to access the governmental entity’s premises or facilities, or to receive the benefits of the governmental entity’s products or services, unless severe conditions exist and the requirement is in effect for no more than fourteen (14) days.”⁶ The new law further defines “severe conditions” to mean that: (1) the Governor of Tennessee has declared a state of emergency for COVID-19; and (2) a county has an average rolling fourteen-day COVID-19 infection rate of at least 1,000 new known cases of COVID-19 for every 100,000 residents of the county based on the most recent data published by the department of health.⁷ When “severe conditions” do not exist, many governmental entities are also prohibited from requiring employees from wearing a face covering as a term or condition of employment, or from taking an adverse action against an employee for failing to wear a face covering.⁸ 

In order for a school to implement a mask mandate under the new law, “severe conditions” must exist, the school’s governing body must adopt a policy requiring all persons on school property to wear a face covering, and the school must provide face coverings meeting the U.S. National Institute for Occupational Safety and Health N95 classification of air filtration for persons 12 years of age and older.⁹ Even if these requirements are met, the new law does not permit schools to require a person to wear a face covering if the person provides documentation from the person’s healthcare provider that wearing a face covering is contraindicated for the person, or if the person objects to wearing a face covering because of the person’s sincerely held religious belief.¹⁰ As with the implementation of COVID-19 vaccine mandates under the new law, there are several exceptions to the prohibitions on the implementation of mask mandates set forth in this article, including for Medicare or Medicaid certified providers, entities operating on property owned, managed, or secured by the federal government, and healthcare providers.¹¹ Also, and very importantly, the new law does not prohibit private employers or businesses from requiring face coverings for employees, customers, or any other members of the public receiving services. 

Beyond significantly curtailing the ability of many government entities and private businesses from implementing COVID-19 vaccine and other similar mandates, the new law makes several other noteworthy changes to Tennessee law. The new law permits certain individuals to receive unemployment retroactively if they left employment because of a failure or refusal to receive a COVID-19 vaccine when it was previously required by their employer.¹² Furthermore, except in certain cases of minors subjected to abuse or dependent and neglected children, the law restricts the ability of healthcare providers to administer a COVID-19 vaccine to a minor without first obtaining written consent from the minor patient’s parent or legal guardian.¹³ Moreover, the law limits civil liability for deaths “arising from COVID-19, unless the claimant proves by clear and convincing evidence that the person proximately caused the loss, damage, injury, or death by an act or omission constituting gross negligence or willful misconduct.”¹⁴ 

Importantly, the new law also contains an enforcement mechanism in the event of violations. Specifically, the new law creates a private right of action for injunctive relief, compensatory damages, and reasonable attorneys’ fees for any aggrieved person against an alleged violator.¹⁵ By its own terms, the new law terminates on July 1, 2023.¹⁶ 

The precise contours or Tennessee’s new COVID-19 law have yet to be fully litigated in the courts, and there are still several areas of uncertainty regarding the new law’s enforceability and constitutionality. Nevertheless, there can be little doubt that Tennessee’s new COVID-19 law has already had a profound impact on Tennessee’s response to the COVID-19 pandemic, and the new law’s effects will likely continue to be felt by private businesses, employers, employees, government entities, and many more until at least July 1, 2023. 

If you think Tennessee’s new COVID-19 law may impact you or a loved one, you should seek the legal advice of a knowledgeable attorney immediately. During these uncertain times, it is extremely important to seek the assistance of a legal professional to learn your legal rights and obligations as Tennessee continues to navigate through the COVID-19 pandemic. Contact a Nashville attorney with Cole Law Group today at 615-490-6020 to schedule a consultation and learn about how Tennessee’s new COVID-19 law may impact you. 

ABOUT THE AUTHOR: Andy Goldstein 

Andy Goldstein is an Associate Attorney at Cole Law Group. He is a graduate of Belmont University College of Law and is admitted to practice in Tennessee state courts, the United States Court of Appeals for the Sixth Circuit, and the Immigration Courts of the Executive Office for Immigration Review (EOIR). Andy focuses his practice in the areas of Family Law, Defamation & Privacy, Probate, and Complex Civil Litigation. Cole Law Group clients benefit from Andy’s passion for the law and dedication to serving them well. 

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an experienced lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author. 

_________________________________

¹ Tenn. Code Ann. § 14-2-102(a).

² Tenn. Code Ann. § 14-1-101(15). Notably, the new law does not define a “private business” to include schools, Medicare or Medicaid certified providers, certain healthcare providers enrolled in Medicare or Medicaid, or certain assisted-care living facilities.

³ Tenn. Code Ann. § 14-1-101(1)(A). Moreover, the definition of “adverse action” in the new law also means to “discharge, threaten, or otherwise discriminate against an employee in any manner that affects the employee’s employment, including compensation, terms, conditions, locations, rights, immunities, promotions, or privileges.”

⁴ Tenn. Code Ann. § 14-6-102.

⁵ Tenn. Code Ann. § 14-2-102(b).

⁶ Tenn. Code Ann. § 14-2-103(a)(1).

⁷ Tenn. Code Ann. § 14-1-101(20).

⁸ Tenn. Code Ann. § 14-2-103(a)(2).

⁹ Tenn. Code Ann. § 14-2-104.

¹⁰ Tenn. Code Ann. § 14-2-104(c).

¹¹ Tenn. Code Ann. § 14-1-101(8).

¹² Tenn. Code Ann. § 14-3-101.

¹³ Tenn. Code Ann. § 14-4-103(a)-(b).

¹⁴ Tenn. Code Ann. § 14-5-101.

¹⁵ Tenn. Code Ann. § 14-6-103.

¹⁶ Tenn. Code Ann. § 14-6-104.

“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)

⁹ Id.

¹⁰ T. C. A. § 31-2-107

¹¹ T. C. A. § 36-1-121(b)

¹² T. C. A. § 31-2-104(b)(1)

¹³ Id.

¹⁴ Id.

¹⁵   T. C. A. § 31-2-110

See also: https://www.colelawgrouppc.com/blog/to-draft-a-will-or-not-to-draft-a-will-that-is-the-question

About the Author:

Hailey Ragsdale is a 2^nd 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 111^th 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.