Elective Share and Death of Surviving Spouse

If the surviving spouse dies before filing for an elective share, does her right to dissent die with her?

No:

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.

Note that the “time for electing” is 9 months from the predeceasing spouse’s date of death, regardless of when the predeceasing spouse’s estate was opened. The court may extend the time limit if the surviving spouse has been adjudged incompetent or is a minor.

Similarly, an election pending at the surviving spouse’s death can be revoked:

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.

Source: T.C.A. § 31-4-105

Posted by Joel D. Roettger, JD, LLM, EPLS

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