Title 31 Descent And Distribution
Chapter 1 General Provisions § 31-1-101. Title definitions. - As used in this title, unless the context otherwise requires:
- (1) “Child” includes any individual, adopted or natural born, entitled to take as a child under this title by intestate succession from the parent whose relationship is involved and excludes any person who is only a stepchild, a foster child, a grandchild or any more remote descendant;
- (2) “Devise,” when used as a noun, means a testamentary disposition of real or personal property. “Devise,” when used as a verb, means to dispose of real or personal property by will;
- (3) “Devisee” means any person designated in a will to receive a devise. In the case of a devise to an existing trust or trustee, or to a trustee or trust described by a will, the trust or trustee is the devisee and the beneficiaries are not devisees;
- (4) “Distributee” means any person who has received property of a decedent from the personal representative other than as a creditor or purchaser;
- (5) “Heirs” means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent;
- (6) “Issue” of a person means all the person's lineal descendants, adopted as well as natural born, of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in this title;
- (7) “Parent” includes any person entitled to take, or who would be entitled to take if the child, adopted or natural born, died without a will, as a parent under this title by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent, or grandparent;
- (8) “Personal representative” includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status; and
- (9) “Property” includes both real and personal property or any interest therein and means anything that may be the subject of ownership.
History (2)
- Acts 1977, ch. 25, § 1
- T.C.A., § 31-101.
§ 31-1-102. Effect of divorce, annulment, and decree of separation. - (a) A person who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the person is married to the decedent at the time of death. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.
- (b) For purposes of this title, a surviving spouse does not include:
- (1) A person who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless they subsequently participate in a marriage ceremony purporting to marry each to the other, or subsequently live together as husband and wife;
- (2) A person who, following a valid or invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third person; or
- (3) A person who was a party to a valid marital dissolution agreement or a valid proceeding concluded by an order purporting to terminate all marital property rights.
History (3)
- Acts 1977, ch. 25, § 1
- T.C.A., § 31-102
- Acts 1987, ch. 390, § 2.
§ 31-1-103. [Repealed]
History (8)
- Acts 1977, ch. 25, § 1
- 1978, ch. 763, § 1
- T.C.A., § 31-103
- Acts 1986, ch. 705, § 1
- 1995, ch. 177, § 2
- 2011, ch. 417, § 4
- 2017, ch. 290, § 7
- repealed by Acts 2019, ch. 340, § 1, effective May 10, 2019.
§ 31-1-104. Descent of homestead. - (a) Unless the homestead has been converted to cash by order of the court pursuant to § 30-2-209, and distributed outright and in fee, the homestead exempt in the possession of or belonging to each head of a family shall, upon that person's death, any provision by will to the contrary notwithstanding, go to the surviving spouse during the surviving spouse's natural life, with the products of the homestead, for the surviving spouse's own use and benefit and that of the surviving spouse's family who reside with the surviving spouse, and, upon the surviving spouse's death, any provision by will to the contrary notwithstanding, it shall go to the minor children of the decedent, free from the debts of the father, mother, or children. Upon the death of the minor child or children, or their arrival of age, the land may be sold, and the proceeds distributed among the heirs of the deceased head of a family as if the head of the family had died intestate.
- (b) Upon the death of the head of a family, without surviving spouse or minor children, the land shall be subject to sale for the payment of the debts as may be legally established against the person's estate as in other cases, and the remainder distributed among the person's heirs.
History (4)
- Acts 1976, ch. 538, § 2
- 1977, ch. 25, §§ 4, 5
- T.C.A., § 31-104
- Acts 1985, ch. 140, § 26.
§ 31-1-105. Fraudulent conveyance to defeat share voidable. - Any conveyance made fraudulently to children or others, with an intent to defeat the surviving spouse of the surviving spouse's distributive or elective share, is, at the election of the surviving spouse, includable in the decedent's net estate under § 31-4-101(b), and voidable to the extent the other assets in the decedent's net estate are insufficient to fund and pay the elective share amount payable to the surviving spouse under § 31-4-101(c).
History (4)
- Acts 1976, ch. 529, § 1
- 1977, ch. 25, §§ 4, 5
- T.C.A., §§ 31-105, 31-616
- Acts 2002, ch. 735, § 4.
§ 31-1-106. Effect of felonious and intentional killing of decedent. - (a) For purposes of this section:
- (1) “Disposition or appointment of property” includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument;
- (2) “Felonious and intentional killing” or “feloniously and intentionally kills” includes the felonious and intentional act of conspiring with another to kill or procure the killing of an individual decedent;
- (3) “Governing instrument” means a governing instrument executed by the decedent; and
- (4) “Revocable,” with respect to a disposition, appointment, provision, or nomination, means one under which the decedent, at the time of or immediately before death, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the killer, whether or not the decedent was then empowered to designate the decedent in place of the decedent's killer and whether or not the decedent then had capacity to exercise the power.
- (b) An individual who feloniously and intentionally kills the decedent forfeits all benefits with respect to the decedent's estate, including an intestate share, an elective share, an omitted spouse's or child's share, a homestead allowance, exempt property, and a family allowance. If the decedent died intestate, the decedent's intestate estate passes as if the killer predeceased the decedent.
- (c) The felonious and intentional killing of the decedent:
- (1) Revokes any revocable:
- (A) Disposition or appointment of property made by the decedent to the killer in a governing instrument;
- (B) Provision in a governing instrument conferring a general or nongeneral power of appointment on the killer; and
- (C) Nomination of the killer in a governing instrument to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, or agent;
- (2) Severs the interests of the decedent and killer in property held by the decedent and the killer at the time of the killing as joint tenants with the right of survivorship or as community property with the right of survivorship, transforming the interests of the decedent and killer into equal tenancies in common; and
- (3) Eliminates any right the perpetrator of the killing otherwise has to file or maintain an action for wrongful death arising out of the death of the decedent or to share in any portion of the proceeds of any wrongful death settlement or judgment resulting from a wrongful death lawsuit.
- (d) A severance under subdivision (c)(2) does not affect a third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship of the killer, unless a writing declaring the severance has been noted, registered, filed, or recorded in records that are:
- (1) Appropriate to the kind and location of the property;
- (2) In the ordinary course of transactions involving the property; and
- (3) Recorded as evidence of ownership.
- (e) Provisions of a governing instrument are to be given effect as if the killer disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent.
- (f) A wrongful acquisition of property or interest by a killer not covered by this section must be treated in accordance with the principle that a killer cannot profit from the killer's wrong.
- (g) A judgment of conviction establishing criminal accountability for the felonious and intentional killing of the decedent is conclusive evidence that the individual is the decedent's killer for purposes of this section.
- (h)
- (1)
- (A) Before the payor or other third party receives written notice of a claimed forfeiture or revocation under this section, the payor or other third party is not liable for having:
- (i) Made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by an intentional and felonious killing; or
- (ii) Taken any other action in good faith reliance on the validity of the governing instrument, upon request and satisfactory proof of the decedent's death.
- (B) A payor or other third party is liable for a payment made or action taken after the payor or other third party received written notice sent pursuant to subdivision (h)(2)(A) of a claimed forfeiture or revocation under this section.
- (2)
- (A) Written notice of a claimed forfeiture or revocation under subdivision (h)(1) must be mailed to the payor's or other third party's main office or home by either:
- (i) Registered or certified mail, return receipt requested; or
- (ii) Served upon the payor or other third party in the same manner as a summons in a civil action.
- (B) Upon receipt of written notice of a claimed forfeiture or revocation under this section, a payor or other third party may pay any amount owed or transfer or deposit any item or property held by the payor to or with the court having jurisdiction of the probate proceeding relating to the decedent's estate, or if no proceedings have been commenced, to or with the court having jurisdiction of the probate proceeding relating to decedents' estates in the county of the decedent's residence.
- (C) The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the court's determination.
- (D) Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
- (i)
- (1)
- (A) Except as otherwise provided in subdivision (i)(2), a person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is not obligated under this section to return the payment, item of property, or benefit, and is not liable under this section for the amount of the payment or the value of the item of property or benefit.
- (B) A person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment or the value of the item of property or benefit to the person who is entitled to it under this section.
- (2) If this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it as if this section was not preempted.
History (4)
- Acts 1976, ch. 538, § 8
- T.C.A., § 31-117
- Acts 2017, ch. 290, § 8
- 2019, ch. 101, § 1.
§ 31-1-107. Federal income tax refund or soil conservation payments due deceased — To whom paid. - (a) In any case where the United States treasury department determines there exists an overpayment of federal income tax and the person in whose favor the overpayment is determined is dead at the time the overpayment of tax is to be refunded and where no administrator or executor has been appointed within sixty (60) days of the death of the deceased person, and irrespective of whether the deceased had filed a joint and several or separate income tax return, the amount of the overpayment, if not in excess of five hundred dollars ($500), shall be the sole and separate property of the decedent's survivor or survivors, if any, entitled thereto in accordance with the laws of descent and distribution of the state, and refund of the overpayment directly to the survivor or survivors by the United States shall operate as a complete acquittal and discharge to it of liability from any suit, claim or demand of whatsoever nature by any creditor of the decedent or other person.
- (b) In the event the person to whom soil conservation payments are due from the United States under the Soil Conservation and Domestic Allotment Act (16 U.S.C. § 590a et seq.) of the Congress of the United States dies before the payments are made, then the payments shall be made to the surviving spouse of that person for the use of the surviving spouse and minor children, and in the event there are minor children and no surviving spouse (the mother or father of the minor children), then and in that event the payments shall be made to the natural guardian of the minor children; and in the event there is no surviving spouse, or minor children, then the payments shall be made to those entitled under the laws of descent and distribution of the state, unless the deceased leaves a will, in which event they shall be made to those entitled under the will. All such payments shall be free from the claims of any and all creditors, except the United States.
History (2)
- Acts 1976, ch. 538, §§ 9, 10
- T.C.A., §§ 31-118, 31-119.
Chapter 2 Intestate Succession § 31-2-101. Intestate estate. - (a) When any person dies intestate, after the payment of debts and charges against the estate, the deceased's property passes to the deceased's heirs as prescribed in the following sections of this chapter.
- (b) Any part of the estate of a decedent not effectively disposed of by the deceased's will passes to the deceased's heirs in the same manner.
History (2)
- Acts 1977, ch. 25, § 2
- T.C.A., § 31-201.
§ 31-2-102. Dower and curtesy abolished. - Dower and curtesy, as formerly known, are abolished. This section shall neither abridge nor affect rights that have vested before April 1, 1977.
History (3)
- Acts 1976, ch. 529, § 1
- 1977, ch. 25, §§ 4, 5
- T.C.A., § 31-202.
§ 31-2-103. Vesting of estate — Net estate. - The real property of an intestate decedent shall vest immediately upon death of the decedent in the heirs as provided in § 31-2-104. The real property of a testate decedent vests immediately upon death in the beneficiaries named in the will, unless the will contains a specific provision directing the real property to be administered as part of the estate subject to the control of the personal representative. Upon qualifying, the personal representative shall be vested with the personal property of the decedent for the purpose of first paying administration expenses, taxes, and funeral expenses and then for the payment of all other debts or obligations of the decedent as provided in § 30-2-317. If the decedent's personal property is insufficient for the discharge or payment of a decedent's obligations, the personal representative may utilize the decedent's real property in accordance with title 30, chapter 2, part 4. After payment of debts and charges against the estate, the personal representative shall distribute the personal property of an intestate decedent to the decedent's heirs as prescribed in § 31-2-104, and the property of a testate decedent to the distributees as prescribed in the decedent's will.
History (4)
- Acts 1977, ch. 25, § 3
- 1978, ch. 763, §§ 4, 5
- T.C.A., § 31-602
- Acts 1985, ch. 140, § 27.
§ 31-2-104. Share of surviving spouse and heirs. - (a) The intestate share of the surviving spouse is:
- (1) If there is no surviving issue of the decedent, the entire intestate estate; or
- (2) If there are surviving issue of the decedent, either one-third (⅓) or a child's share of the entire intestate estate, whichever is greater.
- (b) The part of the intestate estate not passing to the surviving spouse under subsection (a) or the entire intestate estate if there is no surviving spouse, passes as follows:
- (1) To the issue of the decedent; if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation;
- (2) If there is no surviving issue, to the decedent's parent or parents equally;
- (3) If there is no surviving issue or parent, to the brothers and sisters and the issue of each deceased brother and sister by representation; if there is no surviving brother or sister, the issue of brothers and sisters take by representation; or
- (4) If there is no surviving issue, parent, or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there is no surviving grandparent or issue of grandparent on either the paternal or maternal side, the entire estate passes to the relatives on the other side in the same manner as the half.
History (4)
- Acts 1976, ch. 538, § 1
- 1977, ch. 25, § 4
- 1978, ch. 763, § 2
- T.C.A., §§ 31-203, 31-204.
§ 31-2-105. Establishment of parent-child relationship to determine succession. - (a) If, for purposes of inheritance under a will or trust or by intestate succession or contract, a relationship of parent and child must be established to determine succession by, through, or from a person:
- (1) An adopted person is the child of an adopting parent and not of the natural parents, except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent; and
- (2) In cases not covered by subdivision (a)(1), a person born out of wedlock is a child of the mother. That person is also a child of the father, if:
- (A) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or
- (B)
- (i) The paternity is established by adjudication before the death of the father or is established thereafter by clear and convincing proof, but only if an assertion of paternity is made that seeks the adjudication within the earlier of:
- (a) The period prescribed in the notice published or posted in accordance with § 30-2-306; or
- (b) One (1) year after the father's death;
- (ii) The paternity established under this subdivision (a)(2)(B) is ineffective to qualify the father or the father's kindred to inherit from or through the child unless the father has openly treated the child as the father's, and has not refused to support the child.
- (b) In no event is a parent permitted to inherit through intestate succession or under a will or trust or by contract until all child support arrearages together with any interest owed, 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 support or to the parent's estate if deceased.
- (c) Nothing in this section prevents a child from inheriting from a parent through intestate succession.
History (6)
- Acts 1977, ch. 25, § 4
- 1978, ch. 763, § 3
- T.C.A., § 31-206
- Acts 1986, ch. 580, § 5
- 1994, ch. 939, § 2
- 2017, ch. 290, § 9.
§ 31-2-106. Representation. - If representation is called for by this title, such representation shall be per stirpes.
History (2)
- Acts 1977, ch. 25, § 2
- T.C.A., § 31-205.
§ 31-2-107. Kindred of half blood. - Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
History (2)
- Acts 1977, ch. 25, § 2
- T.C.A., § 31-208.
§ 31-2-108. Afterborn heirs. - Relatives of the decedent conceived before the decedent's death but born thereafter inherit as if they had been born in the lifetime of the decedent.
History (2)
- Acts 1977, ch. 25, § 4
- T.C.A., § 31-209.
§ 31-2-109. Escheat. - If there is no taker under this chapter, the intestate estate shall escheat to the state under chapter 6 of this title.
History (3)
- Acts 1977, ch. 25, § 2
- T.C.A., § 31-207
- T.C.A. § 31-2-110.
Chapter 4 Elective Share of Surviving Spouse § 31-4-101. Right to elective share. - (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:
-
- (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.
History (7)
- 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.
§ 31-4-102. Proceeding for elective share — Time limit. - (a)
- (1) The surviving spouse may elect to take the spouse's elective share in decedent's property by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within nine (9) months after the date of death.
- (2) When the title of the surviving spouse to property devised or bequeathed by the will is involved in litigation pending so that an election to take the elective share cannot be advisedly made, the survivor shall have an additional year from the date of the probate of the will within which to elect; provided, that the court may upon a proper showing further extend the time to meet the exigency of litigation, not concluded, and, that application for allowance of additional time, in either case, be made to the court, for record of its action thereon.
- (b) The court shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the decedent's estate whose interests will be adversely affected by the taking of the elective share.
- (c) The surviving spouse may withdraw a demand for an elective share at any time before entry of a final determination by the court.
- (d) After notice and hearing, the court shall determine the elective share and shall order its distribution and/or vesting to the surviving spouse or the spouse's personal representative. If it appears that a fund or property has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession of the fund or property, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than the person would have been if relief had been secured against all persons subject to contribution.
- (e) The order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.
History (6)
- Acts 1976, ch. 529, § 1
- 1977, ch. 25, § 3
- T.C.A., §§ 31-603, 31-618
- Acts 1985, ch. 140, § 29
- 2002, ch. 735, § 5
- 2007, ch. 13, § 4.
§ 31-4-103. Disclosure by personal representative. - To enable the surviving spouse to act as personal interest may require, the personal representative shall disclose, upon application, the state and condition of the spouse-testator's estate.
History (3)
- Acts 1976, ch. 529, § 1
- 1977, ch. 25, §§ 4, 5
- T.C.A., §§ 31-604, 31-617.
§ 31-4-104. Mental incompetency or minority of surviving spouse. - When the surviving spouse has been adjudged mentally incompetent as described by title 34, chapters 1-3, or is under the age of eighteen (18) years, at the time the will is admitted to probate, upon a petition filed by a guardian, conservator or next friend of either, within one (1) year from probate, or within any extension period so granted, alleging that it would be to the interest of the survivor to take the survivor's elective share, the court having the proper jurisdiction is empowered to appoint a guardian ad litem and hear proof and to declare or not declare an election, and enter judgment accordingly, subject to appeal.
History (3)
- Acts 1976, ch. 529, § 1
- 1977, ch. 25, §§ 4, 5
- T.C.A., §§ 31-605, 31-619.
§ 31-4-105. Death of surviving spouse. - In the event the surviving spouse dies before the time for electing the elective share expires, the personal representative of the decedent's surviving spouse may, in like manner and every respect, make the election on behalf of the deceased spouse. In like manner, the personal representative may withdraw a demand for an elective share at any time before entry of a final determination by the court.
History (6)
- Acts 1976, ch. 529, § 1
- 1977, ch. 25, §§ 4, 5
- 1982, ch. 797, § 1
- T.C.A., §§ 31-606, 31-620
- Acts 2002, ch. 735, § 6
- 2014, ch. 829, § 2.
§ 31-4-106. Illegitimate marriage as bar to rights and benefits — Section definitions — Evidential standards — Awarding costs — Notice requirement — Liability limited — Barred actions. - (a) As used in this section:
- (1) “Abuse or neglect” means:
- (A) The same as those terms are defined in § 39-15-501 or § 71-6-102; or
- (B) The intentional provision of unnecessary or excessive medications to an elderly person or disabled adult as part of a scheme to commit or attempt to commit fraud, deceit, or coercion or otherwise financially exploit an elderly person or disabled adult;
- (2) “Capacity” means the mental ability to make a rational decision, including the ability to perceive and appreciate all relevant facts, and reach a rational judgment upon such facts; to make and carry out reasonable decisions concerning the person or the person's resources; and to protect the person from neglect or hazardous or abusive situations without assistance. A person does not have capacity if the person has been rendered temporarily incapable of appraising or controlling the person's conduct due to the influence of a narcotic, anesthetic, or other substance administered to that person without the person's consent, in excessive amounts, or due to any other act committed upon that person without the person's consent;
- (3) “Disabled adult” means the same as defined in § 71-6-120;
- (4) “Elderly person” or “elder” means the same as defined in § 71-6-120;
- (5) “Financial exploitation” means:
- (A) The same as defined in § 39-15-501;
- (B) Any scheme to commit or attempt to commit fraud, deceit, or coercion, or to otherwise unduly influence an elderly person or disabled adult in order to obtain or exert unauthorized control over an elderly person or disabled adult's property with the intent to deprive the elderly person or disabled adult or such person's beneficiaries or heirs of property; or
- (C) Financial abuse as defined in § 36-3-601; and
- (6) “Sexual abuse”:
- (A) Means:
- (i) The same as defined in § 71-6-102; or
- (ii) When an elderly person or disabled adult is forced, tricked, threatened, or otherwise coerced into sexual activity while rendered temporarily incapable of appraising or controlling the person's conduct due to the influence of a narcotic, anesthetic, medication, or other substance administered to that person without the person's consent, in excess, or due to any other act committed upon that person without the person's consent; and
- (B) Does not include any act intended for a valid medical purpose, or any act reasonably intended to be a normal caregiving act, such as bathing by appropriate persons at appropriate times.
- (b) If a surviving spouse is found by a court of competent jurisdiction to have procured a marriage to an elderly person or disabled adult as part of a scheme to commit abuse or neglect, sexual abuse, financial exploitation, or theft of the elderly person's or disabled adult's real or personal property whether by fraud, deceit, coercion, or otherwise, or has otherwise procured marriage to the elderly person or disabled adult by fraud, duress, or undue influence, then the surviving spouse is not entitled to any of the following rights or benefits that inure solely by virtue of the marriage or the person's status as surviving spouse of the decedent unless the decedent and the surviving spouse voluntarily cohabited as husband and wife with full and complete disclosure and knowledge of and capacity to understand the facts constituting such actions and both spouses subsequently ratified the marriage, only to the extent that the elderly adult or disabled adult is capable of ratifying such a marriage:
- (1) Any right or benefit under this title or title 30 or 32, including, but not limited to, entitlement to a surviving spouse's elective share or allowance, preference in appointment as personal representative, inheritance by intestacy, homestead or exempt property, or inheritance as a surviving spouse;
- (2) Any right or benefit under a bond, life insurance policy, or other contractual arrangement if the decedent is the principal obligee or the person upon whose life the policy is issued, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the bond, life insurance policy, or other contractual arrangement;
- (3) Any right or benefit under a will, trust, or power of appointment, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the will, trust, or power of appointment; and
- (4) Any immunity from the presumption of undue influence that a surviving spouse may have under state law.
- (c) Any of the rights or benefits listed in subdivisions (b)(1)-(4) must pass as if the surviving spouse had predeceased the decedent if a court of competent jurisdiction finds that the surviving spouse is not entitled to the rights or benefits pursuant to subsection (b).
- (d) A challenge to a surviving spouse's rights or benefits under this title or title 30 or 32 may be maintained as a defense, objection, or cause of action by any interested person after the death of the decedent in any proceeding in which the fact of marriage may be directly or indirectly material. It is not necessary for a court, as part of any judgment, to declare a marriage void and unenforceable for a contestant to prevail in such a proceeding.
- (e)
- (1) The contestant has the burden of establishing, by a preponderance of the evidence, that the marriage was procured as part of a scheme to commit abuse or neglect, sexual abuse, financial exploitation, or theft of the elderly person's or disabled adult's real or personal property whether by fraud, deceit, coercion, or otherwise, or to otherwise procure marriage to the elderly person or disabled adult by fraud, duress, or undue influence.
- (2) If ratification of the marriage is raised as a defense, then the surviving spouse has the burden of establishing, by clear and convincing evidence, the subsequent ratification by both spouses; provided, however, such defense is not available if:
- (A) The elderly person or disabled adult would otherwise lack the capacity to ratify; or
- (B) Abuse or neglect, sexual abuse, financial exploitation, or theft resulted from intentional, fraudulent, or malicious conduct by the surviving spouse.
- (f) In all actions brought under this section, the court shall award costs, including attorney's fees, to a contestant that prevails. When awarding costs and attorney's fees, the court may direct payment from a party's interest, if any, in the estate, or enter a judgment that may be satisfied from other property of the party, or both.
- (g)
- (1) An insurance company, financial institution, or other obligor making payment according to the terms of its policy or obligation is not liable by reason of this section unless, before payment, the insurance company, financial institution, or other obligor received written notice of a claim pursuant to this section.
- (2) The notice required by this subsection (g) must be in writing and must be accomplished in a manner reasonably suitable under the circumstances and likely to result in receipt of the notice. Permissible methods of notice include first-class mail, personal delivery, delivery to the person's last known place of residence or place of business, or a properly directed facsimile or other electronic message.
- (3) To be effective, notice to a financial institution or insurance company must contain the name, address, and the taxpayer identification number, or the account or policy number, of the principal obligee or person whose life is insured and shall be directed to an officer or a manager of the financial institution or insurance company in this state. If the financial institution or insurance company has no offices in this state, then the notice must be directed to the principal office of the financial institution or insurance company.
- (4) Notice is effective when given, except that notice to a financial institution or insurance company is not effective until five (5) business days after being given.
- (h) The rights and remedies granted in this section are in addition to any other rights or remedies a person may have at law or equity.
- (i) Unless sooner barred by adjudication or estoppel, an interested person is barred from bringing an action under this section unless the action is commenced within four (4) years after the decedent's date of death. A cause of action under this section accrues on the decedent's date of death.
Chapter 5 Advancements § 31-5-101. Equality in dividing estates. - (a) If an individual dies intestate as to all or a portion of the individual's estate, property the decedent gave during the decedent's lifetime to a child of the decedent is treated as an advancement against the child's intestate share only if:
- (1) The decedent declared in a contemporaneous writing, or the child acknowledged in writing, that the gift is an advancement; or
- (2) The decedent's contemporaneous writing or the child's written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent's intestate estate.
- (b) For purposes of subsection (a), property advanced is valued as of the time the child came into possession or enjoyment of the property or as of the time of the decedent's death, whichever first occurs.
- (c) If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent's intestate estate, unless the decedent's contemporaneous writing provides otherwise.
- (d) The further provisions of this chapter concerning collation of property shall apply only if there has been an advancement as determined in accordance with subsection (a).
History (7)
- Code 1858, § 2431 (deriv. Acts 1766, ch. 3, § 1
- 1784 (Apr.), ch. 22, § 2
- 1829, ch. 36, § 1)
- Shan., § 4174
- Code 1932, § 8402
- T.C.A. (orig. ed.), § 31-701
- Acts 1997, ch. 426, § 18.
§ 31-5-102. Collation of advancements generally. - All advancements, whether by settlement or otherwise, in the lifetime of deceased, or by testamentary provision, shall be collated and brought into contribution in the partition and distribution of the real and personal estate of the deceased; those in real estate, first in the partition of real estate, and those in personal estate in the distribution of the personal estate.
History (4)
- Code 1858, § 2432 (deriv. Acts 1839-1840, ch. 48, § 1)
- Shan., § 4175
- Code 1932, § 8402a
- T.C.A. (orig. ed.), § 31-702.
§ 31-5-103. Collation of excess over share. - Should the value of the advancements in real estate exceed the child's share, the overplus shall be collated and brought into contribution in the distribution of the personal estate, and should the value of the advancements in personal estate exceed the share of the child in the personal estate, then the excess shall be brought into contribution in the partition of the real estate.
History (4)
- Code 1858, § 2433 (deriv. Acts 1839-1840, ch. 48, § 2)
- Shan., § 4176
- Code 1932, § 8403
- T.C.A. (orig. ed.), § 31-703.
§ 31-5-104. Collation of property settled on child under power or trust. - Where a power or trust is granted to a parent to bestow property conveyed or settled by the instrument creating the power or trust, in favor of any one or more of the children of the parent, any property given under the power or trust to a child shall be collated and brought into contribution by the child claiming a share in the distribution of the property of the parent.
History (4)
- Code 1858, § 2434 (deriv. Acts 1839-1840, ch. 48, § 3)
- Shan., § 4177
- Code 1932, § 8404
- T.C.A. (orig. ed.), § 31-704.
§ 31-5-105. Jurisdiction of distribution. - All courts having jurisdiction to partition real estate and order distribution among heirs and distributees, shall have full power to cause accounts to be taken and valuations of lands to be made, so as to enforce equality of partition and distribution.
History (4)
- Code 1858, § 2435 (deriv. Acts 1829, ch. 36, § 2)
- Shan., § 4178
- Code 1932, § 8405
- T.C.A. (orig. ed.), § 31-705.
Chapter 6 Escheat of Decedents' Estates § 31-6-101. Escheat generally. - (a) If a decedent, whether or not domiciled in this state, leaves no one to take the decedent's estate or any portion of the estate by the decedent's will and no one other than a government or governmental subdivision or agency to take the decedent's estate or a portion of the estate by intestate succession, under the laws of this state or any other jurisdiction, the estate escheats as of the time of the decedent's death in accordance with this chapter.
- (b) Property passing to the state under this chapter, whether held by the state or its officers, is subject to the same liens, charges and trusts to which it would have been subject if it had passed by will or intestate succession.
History (2)
- Acts 1979, ch. 226, § 1
- T.C.A., § 31-801.
§ 31-6-104. Escheat of tangible personal property subject to administration in this state. - (a) Subject to subsection (b), all tangible personal property owned by a decedent that is subject to the control of a court of this state for the purposes of administration escheats to this state in accordance with § 31-6-101.
- (b) Property that otherwise falls within subsection (a) does not escheat to this state but goes to another jurisdiction if the other jurisdiction claims the property and establishes that:
- (1) The other jurisdiction is entitled to the property under its laws;
- (2) The decedent customarily kept the property in that jurisdiction prior to the decedent's death; and
- (3) This state has the right to escheat and take tangible personal property being administered as part of a decedent's estate in the other jurisdiction if the decedent customarily kept the property in this state prior to the decendent's death.
History (2)
- Acts 1979, ch. 226, § 4
- T.C.A., § 31-804.
§ 31-6-106. Escheat of intangible personal property subject to administration in this state. - (a) Subject to subsection (b), all intangible property owned by a decedent that is subject to the control of a court of this state for purposes of administration escheats to this state in accordance with § 31-6-101, whether or not the decedent was domiciled in this state at the decedent's death.
- (b) The property described in subsection (a) does not escheat to this state but goes to another jurisdiction, if the other jurisdiction claims the property and establishes that:
- (1) The other jurisdiction is entitled to the property under its laws;
- (2) The decedent was domiciled in that jurisdiction at the decedent's death; and
- (3) This state has the right to escheat and take intangible personal property being administered as part of a decedent's estate in that jurisdiction if the decedent was domiciled in this state at the decedent's death.
History (2)
- Acts 1979, ch. 226, § 6
- T.C.A., § 31-806.
§ 31-6-107. Reports concerning property that may be subject to escheat. - (a) All administrators, executors, trustees, guardians, or other fiduciaries having in their custody or control property that may be subject to escheat pursuant to this chapter shall promptly, after obtaining knowledge as to facts indicating the possibility of the escheat of any such property, file with the state treasurer a report on such forms as the state treasurer may prescribe, showing, with such other information as the treasurer may require, the nature, location and approximate value of the property, the basis for believing that it may be subject to escheat, and whether there are any other persons who have asserted or may assert claims to the property.
- (b) The department of revenue shall review all inheritance or estate tax returns filed with it for the purpose of determining whether the estates include property that may be subject to escheat under this chapter and shall report any such property to the state treasurer.
History (3)
- Acts 1979, ch. 226, § 7
- T.C.A., § 31-807
- Acts 1986, ch. 539, § 3.
§ 31-6-108. Surrender and retention of property subject to escheat. - (a) Any person having custody of or control over property subject to escheat under this chapter may be fully released from any responsibility or liability with respect thereto by surrendering or delivering same to the state treasurer and formally disclaiming any interest therein.
- (b) In the event property subject to escheat under this chapter is not surrendered or delivered to the treasurer as provided in subsection (a), the property shall be held until a final determination of the question of escheat by a court of competent jurisdiction as provided in this chapter, in which case the person having custody of or control over the property shall not be discharged from the person's duties as a fiduciary or personal representative until there has been a final determination of the question.
History (2)
- Acts 1979, ch. 226, § 8
- T.C.A., § 31-808.
§ 31-6-109. Suit involving escheat property — Duties of state treasurer and attorney general and reporter. - (a) Following notice to the state treasurer that a suit involving escheat property has been commenced, the state treasurer shall notify the attorney general and reporter of the action and together they shall determine what action, if any, shall be taken by the attorney general and reporter in order to protect the state's interest.
- (b) The state treasurer shall be kept informed by the party filing the initial notice of all pleadings filed with the court regardless of any action taken by the attorney general and reporter.
- (c) The state treasurer, through the attorney general and reporter, may intervene in the lawsuit at any stage in the proceeding if necessary to protect the state's interest.
History (3)
- Acts 1979, ch. 226, § 9
- T.C.A., § 31-809
- Acts 1986, ch. 539, § 4.
§ 31-6-111. Intervention. - (a) Any person, except another state, who claims an interest in any property that is the subject of an escheat proceeding under this chapter may intervene by filing a petition in that proceeding, setting forth the basis of the person's claim, which petitions shall be disposed of by the court in determining whether the property has escheated pursuant to this chapter.
- (b) If any other state claims an interest in any property that is the subject of an escheat proceeding under this chapter, the other state may file an intervening petition in the suit for the determination of its claim, if the other state provides for the determination of claims by this state under similar circumstances.
History (2)
- Acts 1979, ch. 226, § 11
- T.C.A., § 31-811.
§ 31-6-112. Determination of title. - In any escheat proceeding where the court determines that the property has not escheated to this state, the court shall determine what person or persons is or are entitled to the property or its proceeds.
History (2)
- Acts 1979, ch. 226, § 12
- T.C.A., § 31-812.
§ 31-6-113. Sale pending determination. - In any escheat proceeding where the court determines a sale of the property prior to the final determination of the case to be advisable in order to protect the true owner from loss and to realize the maximum proceeds following notice to the treasurer by the representative of the estate, the court may order such a sale on such terms and in such manner as it deems advisable. In case such a sale is ordered, the proceeds shall be disposed of as the original property would have been but for the sale.
History (3)
- Acts 1979, ch. 226, § 13
- T.C.A., § 31-813
- Acts 1986, ch. 539, § 6.
§ 31-6-114. Joinder of treasurer in case that may involve property subject to escheat. - (a) In any case in any court of this state involving the title to any property, including, but not limited to, proceedings involving the validity or construction of wills, where it appears that the property may be subject to escheat under this chapter, the state treasurer shall be made a party defendant therein, either in the original pleadings, on motion of any party, on petition of the treasurer, or by the court on its own motion. Process shall be served on the treasurer as otherwise provided by law, and after making such investigation as the treasurer deems appropriate, the treasurer shall, through the attorney general and reporter, file such pleadings and take such position as may be determined to best protect the interest of the state.
- (b) In any such case, if the court decrees that the property has escheated to this state under this chapter, then no further proceeding shall be necessary to establish the state's right to the property and the property shall be disposed of by the treasurer as provided in § 31-6-116 for other property escheating to the state.
History (2)
- Acts 1979, ch. 226, § 14
- T.C.A., § 31-814.
§ 31-6-115. Proceedings in other states. - (a) In any case where it appears to the treasurer that property that is not subject to the jurisdiction of courts of this state has escheated to this state under this chapter and the other state provides a remedy to this state for the establishment of the rights of this state to such property, and it further appears to the treasurer that the value of the property justifies asserting the claim of this state, the treasurer shall request the attorney general and reporter and the attorney general and reporter shall take such action as deemed appropriate to assert the claim and protect the interest of this state.
- (b) This state may pay all reasonable costs incurred by any other state in any action brought by the other state at the request of the attorney general and reporter of this state under this section. Any state bringing such an action may be entitled additionally to a reward of up to fifteen percent (15%) of the value, after deducting reasonable costs, of any property recovered for this state as a direct or indirect result of the action.
History (2)
- Acts 1979, ch. 226, § 15
- T.C.A., § 31-815.
§ 31-6-116. Disposition of escheated property. - All escheated property delivered to the state treasurer under this chapter shall be held and disposed of in the same manner and together with other interest bearing property reported to the state treasurer under title 66, chapter 29, part 1.
History (3)
- Acts 1979, ch. 226, § 16
- T.C.A., § 31-816
- Acts 1986, ch. 539, § 7.
§ 31-6-119. Claims for property of decedent. - Any person claiming to be entitled to the property of any decedent may file a claim thereto with the treasurer in accordance with title 66, chapter 29, part 1, governing the disposition of unclaimed property.
History (3)
- Acts 1979, ch. 226, § 19
- T.C.A., § 31-819
- Acts 1986, ch. 539, § 10.
§ 31-6-120. Rules and regulations. - The treasurer is authorized to make necessary rules and regulations to carry out this chapter.
History (2)
- Acts 1979, ch. 226, § 20
- T.C.A., § 31-820.
§ 31-6-121. Excepted property. - This chapter shall not apply to any property that has been presumed abandoned or has escheated under the laws of another state prior to January 1, 1980.
History (2)
- Acts 1979, ch. 226, § 21
- T.C.A., § 31-821.
§ 31-6-122. Right of appeal. - All parties to any suit instituted under this chapter shall have the right to appeal in the manner provided by the Tennessee Rules of Appellate Procedure.
History (2)
- Acts 1981, ch. 449, § 2
- T.C.A., § 31-822.
Chapter 7 Tennessee Disclaimer of Property Interests Act § 31-7-101. Short Title. - This chapter shall be known and may be cited as the “Tennessee Disclaimer of Property Interests Act.”
§ 31-7-102. Definitions. - As used in this chapter, unless the context otherwise requires:
- (1) “Disclaimant” means the person to whom a disclaimed interest or power would have passed had the disclaimer not been made;
- (2) “Disclaimed interest” means the interest that would have passed to the disclaimant had the disclaimer not been made;
- (3) “Disclaimer” means the refusal to accept an interest in or power over property;
- (4) “Fiduciary” means a personal representative, trustee, agent acting under a power of attorney, or other person authorized to act as a fiduciary with respect to the property of another person;
- (5) “Jointly held property” means property held in the name of two (2) or more persons under an arrangement in which all holders have concurrent interests and under which the last surviving holder is entitled to the whole of the property;
- (6) “Person” means an individual; fiduciary; corporation; business trust; estate; trust; partnership; limited liability company; association; joint venture; government, governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity;
- (7) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. “State” includes an Indian tribe or band, or Alaskan native village, recognized by federal law or formally acknowledged by a state; and
- (8) “Trust” means:
- (A) An express trust, charitable or noncharitable, with additions thereto, whenever and however created; and
- (B) A trust created pursuant to a statute, judgment, or decree that requires the trust to be administered in the manner of an express trust.
§ 31-7-103. Scope. - This chapter applies to disclaimers of any interest in or power over property, whenever created.
§ 31-7-104. Disclaimer Act supplement by other law. - (a) Unless displaced by this chapter, the principles of law and equity supplement this chapter.
- (b) This chapter does not limit any right of a person to waive, release, disclaim, or renounce an interest in or power over property under a law other than this chapter.
§ 31-7-105. Power to disclaim — General requirements — When irrevocable. - (a) A person may disclaim, in whole or part, any interest in or power over property, including a power of appointment. A person may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim.
- (b) Except to the extent a fiduciary's right to disclaim is expressly restricted or limited by state law or by the instrument creating the fiduciary relationship, a fiduciary may disclaim, in whole or part, any interest in or power over property, including a power of appointment, whether acting in a personal or representative capacity. A fiduciary may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim, or an instrument other than the instrument that created the fiduciary relationship imposed a restriction or limitation on the right to disclaim.
- (c) To be effective, the disclaimer must:
- (1) Be in writing;
- (2) Declare the disclaimer, and the extent thereof;
- (3) Describe the interest or power disclaimed; and
- (4) Be signed either by:
- (A) The person making the disclaimer; or
- (B) Some person subscribing the name of the person making the disclaimer, in the person's presence and by such person's express direction in the presence of two (2) or more witnesses competent to witness a will under title 32.
- (d) A partial disclaimer may be expressed as a fraction, percentage, monetary amount, term of years, limitation of a power, or any other interest or estate in the property.
- (e) A disclaimer becomes irrevocable when it is delivered or filed pursuant to § 31-7-112 or when it becomes effective as provided in §§ 31-7-106 — 31-7-111, whichever occurs later.
§ 31-7-106. Disclaimer of interests in property. - (a) As used in this section:
- (1) “Future interest” means an interest that takes effect in possession or enjoyment, if at all, later than the time of its creation; and
- (2) “Time of distribution” means the time when a disclaimed interest would have taken effect in possession or enjoyment.
- (b) Except for a disclaimer governed by § 31-7-107 or § 31-7-108, the following rules apply to a disclaimer of an interest in property:
- (1) The disclaimer takes effect as of the time the instrument creating the interest becomes irrevocable, or, if the interest arose under the law of intestate succession, as of the time of the intestate's death;
- (2) The disclaimed interest passes according to any provision in the instrument creating the interest providing for the disposition of the interest, should it be disclaimed, or of disclaimed interests in general;
- (3) If the instrument does not contain a provision described in subdivision (b)(2), the following rules apply:
- (A) If the disclaimant is not an individual, the disclaimed interest passes as if the disclaimant did not exist;
- (B) If the disclaimant is an individual, except as otherwise provided in subdivisions (3)(C) and (3)(D), the disclaimed interest passes as if the disclaimant had died immediately before the time of distribution;
- (C) If by law or under the instrument, the descendants of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died immediately before the time of distribution, the disclaimed interest passes only to the descendants of the disclaimant who survive the time of distribution; and
- (D) If the disclaimed interest would pass to the disclaimant's estate had the disclaimant died before the time of distribution, the disclaimed interest instead passes per stirpes to the descendants of the disclaimant who survive the time of distribution. If no descendant of the disclaimant survives the time of distribution, the disclaimed interest passes to those persons, including the state but excluding the disclaimant, and in such shares as would succeed to the transferor's intestate estate under the intestate succession law of the transferor's domicile had the transferor died at the time of distribution; and
- (4) Upon the disclaimer of a preceding interest, a future interest held by a person other than the disclaimant takes effect as if the disclaimant had died or ceased to exist immediately before the time of distribution, but a future interest held by the disclaimant is not accelerated in possession or enjoyment.
§ 31-7-107. Disclaimer of rights of survivorship in jointly held property. - (a) Upon the death of a holder of jointly held property, a surviving holder may disclaim, in whole or part, the greater of:
- (1) A fractional share of the property determined by dividing the number one (1) by the number of joint holders alive immediately before the death of the holder to whose death the disclaimer relates; or
- (2) All of the property except that part of the value of the entire interest attributable to the contribution furnished by the disclaimant.
- (b) A disclaimer under subsection (a) takes effect as of the death of the holder of jointly held property to whose death the disclaimer relates.
- (c) An interest in jointly held property disclaimed by a surviving holder of the property passes as if the disclaimant predeceased the holder to whose death the disclaimer relates.
§ 31-7-109. Disclaimer of power of appointment not held in a fiduciary capacity or other power not held in a fiduciary capacity. - If a holder disclaims a power of appointment not held in a fiduciary capacity or other power not held in a fiduciary capacity, the following rules apply:
- (1) If the holder has not exercised the power, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable;
- (2) If the holder has exercised the power and the disclaimer is of a power other than a presently exercisable general power of appointment, the disclaimer takes effect immediately after the last exercise of the power; and
- (3) The instrument creating the power is construed as if the power expired when the disclaimer became effective.
§ 31-7-111. Disclaimer of power held in fiduciary capacity. - (a) If a fiduciary disclaims a power held in a fiduciary capacity which has not been exercised, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable.
- (b) If a fiduciary disclaims a power held in a fiduciary capacity which has been exercised, the disclaimer takes effect immediately after the last exercise of the power.
- (c) A disclaimer under this section is effective as to another fiduciary if the disclaimer so provides and the fiduciary disclaiming has the authority to bind the estate, trust, or other person for whom the fiduciary is acting.
§ 31-7-112. Delivery or filing. - (a) As used in this section, “beneficiary designation” means an instrument, other than an instrument creating a trust, naming the beneficiary of:
- (1) An annuity or insurance policy;
- (2) An account with a designation for payment on death;
- (3) A security registered in beneficiary form;
- (4) A pension, profit-sharing, retirement, or other employment-related benefit plan; or
- (5) Any other nonprobate transfer at death.
- (b) Subject to subdivision (c)(1), delivery of a disclaimer may be affected by personal delivery, first-class mail, or any other method likely to result in its receipt.
- (c) In the case of an interest created under the law of intestate succession or an interest created by will, other than an interest in a testamentary trust:
- (1) A disclaimer must be delivered to the personal representative of the decedent's estate; or
- (2) If no personal representative is then serving, the disclaimer must be filed with a court having jurisdiction to appoint the personal representative.
- (d) In the case of an interest in a testamentary trust:
- (1) A disclaimer must be delivered to the trustee then serving;
- (2) If no trustee is then serving, the disclaimer must be delivered to the personal representative of the decedent's estate; or
- (3) If no trustee is then serving and no personal representative is then serving, the disclaimer must be filed with a court having jurisdiction to enforce the trust.
- (e) In the case of an interest in an inter vivos trust:
- (1) A disclaimer must be delivered to the trustee then serving;
- (2) If no trustee is then serving, the disclaimer must be filed with a court having jurisdiction to enforce the trust; or
- (3) If the disclaimer is made before the time the instrument creating the trust becomes irrevocable, the disclaimer must be delivered to the settlor of a revocable trust or the transferor of the interest.
- (f) In the case of an interest created by a beneficiary designation that is disclaimed before the designation becomes irrevocable, the disclaimer must be delivered to the person making the beneficiary designation.
- (g) In the case of an interest created by a beneficiary designation which is disclaimed after the designation becomes irrevocable:
- (1) The disclaimer of an interest in personal property must be delivered to the person obligated to distribute the interest; and
- (2) The disclaimer of an interest in real property must be recorded in the office of the county register's office of the county where the real property that is the subject of the disclaimer is located.
- (h) In the case of a disclaimer by a surviving holder of jointly held property, the disclaimer must be delivered to the person to whom the disclaimed interest passes.
- (i) In the case of a disclaimer by an object or taker in default of exercise of a power of appointment at any time after the power was created, the disclaimer must be delivered to:
- (1) The holder of the power; and
- (2) The fiduciary acting under the instrument that created the power; provided, however, if no fiduciary is then serving, the disclaimer must be filed with a court having authority to appoint the fiduciary.
- (j) In the case of a disclaimer by an appointee of a nonfiduciary power of appointment, the disclaimer must be delivered to:
- (1) The holder or personal representative of the holder's estate; and
- (2) The fiduciary under the instrument that created the power; provided, however, that if no fiduciary is then serving, the disclaimer must be filed with a court having authority to appoint the fiduciary.
- (k) In the case of a disclaimer by a fiduciary of a power over a trust or estate, the disclaimer must be delivered as provided in subsection (c), (d), or (e), as if the power disclaimed were an interest in property.
- (l) In the case of a disclaimer of a power by an agent, the disclaimer must be delivered to the principal or the principal's representative.
§ 31-7-113. When disclaimer barred or limited. -
- (a) A disclaimer is barred by a written waiver of the right to disclaim.
- (b) A disclaimer of an interest in property is barred if any of the following events occur before the disclaimer becomes effective:
- (1) The disclaimant accepts the interest sought to be disclaimed;
- (2) The disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers the interest sought to be disclaimed or contracts to do so; or
- (3) A judicial sale of the interest sought to be disclaimed occurs.
- (c) A disclaimer, in whole or part, of the future exercise of a power held in a fiduciary capacity is not barred by its previous exercise.
- (d) Unless the power is exercisable in favor of the disclaimant, a disclaimer, in whole or part, of the future exercise of a power not held in a fiduciary capacity is not barred by its previous exercise.
- (e) A disclaimer is barred or limited if so provided by law other than this chapter.
- (f) A disclaimer of a power over property which is barred by this section is ineffective. A disclaimer of an interest in property which is barred by this section takes effect as a transfer of the interest disclaimed to the persons who would have taken the interest under this chapter had the disclaimer not been barred.
§ 31-7-114. Tax qualified customer. - (a) Notwithstanding this chapter, if as a result of a disclaimer or transfer the disclaimed or transferred interest is treated pursuant to title 26 of the United States code, as now or hereafter amended, or any successor statute thereto, and the regulations promulgated thereunder, as never having been transferred to the disclaimant, then the disclaimer or transfer is effective as a disclaimer under this chapter.
- (b) Tax qualified disclaimers must comply with the rules set forth in 26 U.S.C. § 2518, as now or hereafter amended, or any successor statute thereto, and the regulations promulgated thereunder, including the nine-month time limitation set forth under 26 U.S.C. § 2518(b)(2).
§ 31-7-115. Recording of disclaimer. - If an instrument transferring an interest in or power over property subject to a disclaimer is required or permitted by law to be filed, recorded, or registered, the disclaimer may be so filed, recorded, or registered. Except as otherwise provided in § 31-7-112(g)(2), failure to file, record, or register the disclaimer does not affect its validity as between the disclaimant and persons to whom the property interest or power passes by reason of the disclaimer.
§ 31-7-116. Application to existing relationships. - Except as otherwise provided in § 31-7-113, an interest in or power over property existing on May 10, 2019 as to which the time for delivering or filing a disclaimer under law superseded by this chapter has not expired may be disclaimed after May 10, 2019.
§ 31-7-117. Severability clause. - If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to that end the provisions of this chapter are declared to be severable.
2024 Tennessee Code Unannotated