Tennessee Estate Planning Considerations
While Tennessee is a common law state, a married couple can treat the specific property as community according to the statute.
- A Common Law State means the rules governing the ownership, division, and inheritance of income and property acquired by a husband or wife during their marriage holds that subject to various qualifications, each spouse owns and has complete control over their income and property.
Last Will and Testament
The minimum age of a person competent to make a will is 18. The number of witnesses necessary to execute a will is two.
The custodial arrangement terminates when:
- The minor child reaches age 21. However, the donor can delay the transfer up to age 25 if done in writing, and, for an inter-vivos gift, the writing expressly states that deferring the termination of the custodianship beyond age 21 will characterize the transfer as a gift of a future interest that could have federal and gift tax consequences.
- The minor child dies.
Dying without a Last Will, the Tennessee Laws of Intestacy.
The estate goes to the surviving spouse, as follows:
- If there are no surviving descendants, —100% of the estate
- If there are surviving descendants—the greater of one‐third of the estate or a child’s share of the estate
If there is no surviving spouse, or if a portion of the estate does not go to the spouse:
- 100% to any descendants, equally if they are all of the same degrees of kinship to the decedent, but if of unequal degree, then by representation (see T.C.A. §31‐2‐106)
If there is no surviving spouse or descendant:
- 100% to surviving parent or parents equally
If there is no surviving spouse, descendant, or parent:
- 100% to surviving siblings and the descendants of each deceased sibling, by representation (see T.C.A. §31‐2‐106)
If there is no surviving spouse, descendant, parent, or sibling:
100% to the descendants of siblings, by representation (see T.C.A. §31‐2‐106)
If none of the above:
- Intestacy laws outline further distribution steps to the level of grandparents and descendants. See T.C.A. §31‐2‐104(4).
- If no legally described recipient can be found, estate assets go to the state of Tennessee.
The following chart lists the main provisions of Tennessee’s living will laws.
32-11-101 et seq. Right to Natural Death Act
Specific Powers, Life-Prolonging Acts
Any procedure, treatment to diagnose, assess, or treat a disease, illness, or injury. Includes surgery, drugs, transfusions, mechanical ventilation, dialysis, C.P.R., artificial nourishment, hydration, or other nutrients, radiation. Death by starvation or dehydration allowed only if directed explicitly by using the statutory phrase.
Legal Requirements for Valid Living Will
(1) Competent adult; (2) signed; (3) in the presence of 2 witnesses; (4) substantially in the form of §32-11-105. Witnesses must not be related to the declarant.
Revocation of Living Will
Revocable at any time by declarant regardless of mental state if effectively communicated to the physician by written revocation dated and signed or oral statement made to the physician
Validity from State-to-State
Effective if in compliance with Tennessee law or the law of the state of declarant’s residence
If Physician Unwilling to Follow Durable Power of Attorney
An unwilling physician must make every reasonable effort to assist in a transfer.
Immunity for Attending Physician
No civil, criminal, or professional liability if acting in accord with reasonable medical standards
Tennessee follows the Revised Uniform Fiduciary Access to Digital Assets Act to ensure that testators can retain control of their digital property and plan for its ultimate disposition.
Tennessee does not impose an inheritance tax.
Credit Estate Tax
Tennessee imposes an estate tax equal to the maximum credit allowed under the federal tax code for paid state estate and inheritance taxes under I.R.C. Sec. 2011. However, the current federal tax code does not permit a credit for paid state estate or inheritance taxes. Therefore, there is no credit estate tax in effect at this time.
Generation-Skipping Transfer Tax (G.S.T. Tax)
Tennessee imposes a G.S.T. tax equal to the maximum credit allowed under I.R.C. Sec. 2604 for paid state G.S.T. tax.
Tennessee does not impose a gift tax.