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Franklin Divorce Attorney > Blog > Estate Planning > Spousal Inheritance and the Elective Share

Spousal Inheritance and the Elective Share


One of the most controversial works left behind by William Shakespeare is actually not Macbeth, nor any other elaborate poetry or drawn-out scene. Shakespeare’s most controversial work may very well be his own last will and testament – finalized merely a month before his death. The will specifies that various items be left to his children, his sister, and his sister’s children – nothing too extraordinary. But what is spoken of today is just how little the great laureate had to say about his own wife of 33 years.

Shakespeare’s will makes no mention of his wife but for one phrase – he bequeathed her with “my second-best bed with the furniture.” What this really means, why he did it…who got the first bed, anyway…are all mysteries lost with the bard, and hotly discussed by his devoted following over the past four hundred years.

While no one can say what, precisely, the Bard’s intentions were with his last will and testament – one plausible theory is that the laws of the time would have made his will defective, had he attempted to scrub his wife completely from it. The laws of old England had developed to protect spouses and prohibit their complete disinheritance from a last will and testament. With this theory in mind, Shakespeare’s reasoning behind leaving his wife the second-best bed could be to ensure that she would receive essentially nothing from his estate – and it would have been quite the tongue-in-cheek insult to throw down on his way out.

Similar to old England, Tennessee law has also developed to protect a spouse’s guaranteed right to some amount of their spouse’s estate upon their death. This concept is known as the “elective share.”

What is an elective share?

Under Tennessee law, an elective share is going to be a certain percentage of a testator’s estate. This share can be claimed by a surviving spouse.

In Tennessee, the size of a surviving spouse’s elective share will be based on the length of the couples’ marriage, as follows:

  • Marriage lasted less than three years: surviving spouse entitled to 10% of the testator spouse’s net estate
  • Marriage lasted three years to five years: surviving spouse entitled to 20%
  • Marriage lasted six to eight years: surviving spouse entitled to 30%
  • Marriage lasted at least nine years: surviving spouse entitled to

If the couple at issue had an off and on relationship, marrying and divorcing through the years, and were married at the time one of them passed away, then the total years of marriage are going to be combined to determine the appropriate elective share.


Time limits do exist for a surviving spouse to claim their elective share. The surviving spouse must notify the court and the estate’s personal representative about their decision to accept an elective share within nine months of the decedent’s death. This time limit may be extended if the estate has pending litigation, but time is of the essence in these cases.

Contact Fort, Holloway & Rogers

The experienced Franklin estate planning & probate lawyers at Fort, Holloway & Rogers can help guide you through any estate planning or probate related issues. Contact our office today for a consultation.




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