VOL. 133 | NO. 178 | Friday, September 7, 2018
'Are You My Heir?' - Who Inherits When You Die Without a Will
By Jennifer L. Sneed, Special to The Daily News
In my August column, I explained the value of having a Last Will and Testament, generally referred to as a “will.” However, as with most things, a will’s value is relative; it largely depends on your unique circumstances. Over the next three articles, I will highlight several areas in which dying “intestate,” i.e. without a will, may have a significant impact on the way your assets are distributed after you die.
Tennessee Intestacy Law
Like most states, Tennessee has an extensive set of statutes, called “intestate succession” or “intestacy” laws, that govern how your probate assets are distributed if you die intestate. These default statutes establish an inheritance hierarchy based on your particular family structure. All of your assets will pass to your statutorily-identified next-of-kin — your “heirs-at-law,” or “heirs”— in accordance with the intestacy laws. For example, the sole heir of a married person who dies with no living descendants (e.g., children, grandchildren, etc.) is their spouse, while the two heirs of an unmarried person who dies with no living descendants are their living parents, equally. Legally adopted children inherit equally with natural-born marital children, but non-marital (i.e., “outside”) children might not, as will be explored later in this article. In the event that one of your children pre-deceases you, the living descendants of that deceased child will inherit that deceased child’s share (which I explain in more detail). Under Tennessee law, your heirs (excluding your spouse and descendants) are limited to those with whom you share the same grandparents, but even then, particularly in distant families, it is not unheard of for your heirs-at-law to be people you’ve never met.
Significant Others and Former Spouses
As noted above, under Tennessee intestacy law, your heirs will be your spouse and/or your relatives. This may present an issue if you are legally divorced from, or otherwise not married to, your significant other/partner. If you are not legally married to your partner at the time of your death and you die intestate, your partner generally cannot inherit from you. Tennessee is not a common-law marriage state, and mere cohabitation is not grounds for inheritance. Conversely, if you are not legally divorced at your death, your spouse is still an heir. Note also that if you fail to remove your spouse from any beneficiary or pay-on-death designation forms, that asset likely will still pass to that ex-spouse upon your death. I will explore this unintended pitfall in a later column.
Intestacy can become extremely complex if you have descendants. Descendants inherit from their ancestors in percentages based on both the total number of children, and the number of children in each subsequent generational line. For example, if Grandpa Billy has three children — Judy and Johnny, who are living, and Jimmy, who is deceased — and Jimmy has two living children (i.e., Billy’s grandchildren), then, at Grandpa Billy’s death, his estate will be divided three ways — 1/3 to Judy, 1/3 to Johnny, and Jimmy’s 1/3 is divided by the number of his heirs (here, 2) leaving Jimmy’s children with 1/6 of Grandpa Billy’s estate. The fact that Jimmy died before Grandpa Billy doesn’t prevent Jimmy’s children from being Grandpa Billy’s heirs. The key is determining the number of living descendants at each generational level.
An added layer of complexity comes with proving non-marital paternity. Courts typically determine intestate inheritance through the child’s birth father based on (1) whether that child has sufficient proof that they are the decedent’s child, and (2) whether the child timely asserts that proof. The presence of the father’s name on the child’s birth certificate will generally establish the child’s right to inherit. It typically doesn’t matter whether the child had a close personal relationship with the parent, so long as the child can establish physical paternity. This standard applies to marital children as well — all lawful children are intestate heirs, regardless of whether a particular child is favored or disfavored.
Tennessee’s intestacy laws, while practical for some, may cause significant confusion for others. In October’s article, I will address several other intestate inheritance concerns, as well as few tools that may enable you to leave assets to people outside of a will and the intestate succession process.
These articles are purely informational and do not constitute legal advice. As with all legal issues, please consult your attorney when determining your estate planning needs.
Jennifer L. Sneed is an attorney with Bourland, Heflin, Alvarez, Minor & Matthews PLC.