IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

September 21, 2004 Session

IN RE: ESTATE OF FRANK SOARD

Appeal from the Probate Court for Blount County

No. 02-22-57 Hugh E. Delozier, Jr., Judge

No. E2004-01434-COA-R3-CV 

This case involves a dispute between a widow and the personal representative of her husband’s

estate. The parties differ as to the correct interpretation of Tenn. Code Ann. § 31-4-101 (2001), the

statute setting forth the criteria pursuant to which a surviving spouse’s elective share is computed.

The trial court adopted the estate’s construction of the statute and subtracted the widow’s exempt

property, homestead allowance, and year’s support allowance from the value of her percentage share

of the net estate in arriving at the elective-share amount to which she is entitled. We disagree with

the trial court’s interpretation of the statute. Accordingly, we reverse the judgment of that court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court 

Reversed; Case Remanded

CHARLESD.SUSANO,JR.,J., delivered the opinion of the court, in which HERSCHEL P.FRANKS,P.J.,

and D. MICHAEL SWINEY, J., joined.

Robert N. Goddard, Maryville, Tennessee, for the appellant, Sarah Soard.

Martha S. L. Black, Maryville, Tennessee, for the appellee, Estate of Frank Soard.

OPINION

I.

The parties filed a stipulation of material facts in the trial court. The stipulation provides,

in pertinent part, as follows:

Frank Soard died on the 14th day of July, 2003.

Frank Soard was survived by his wife, Sarah Soard, whom he had

married on the 24th day of June, 1995.
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The Parties agreed that pursuant to [Tenn. Code Ann.] § 30-2-209,

Sarah Soard is entitled to payment of $5,000.00 for Homestead.

The Parties agreed that pursuant to [Tenn. Code Ann.] § 30-2-102,

Sarah Soard is entitled to [a] Year’s Support in the amount of

$13,656.00.

The Parties agreed that pursuant to [Tenn. Code Ann.] § 30-2-101,

Sarah Soard is entitled to $37,848.92 in Exempt Property.

Inasmuch as Frank and Sarah Soard had been married more than six

years but less than nine years, the Parties agreed that Sarah Soard was

entitled to an Elective Share of Thirty Percent (30%) of the net estate

as set out in [Tenn. Code Ann.] § 31-4-101(a).

Pursuant to [Tenn. Code Ann.] § 31-4-101(b), the Parties agreed to

the following determination of the net estate as of November 11,

2003, the Parties acknowledging, however, that the administrative

expenses are subject to increase based on attorneys fees and expenses

incurred in this Elective Share litigation:

Gross Estate $872,253.32

Less:

ORNL Mortgage $29,408.23

Funeral and Admin. Exp. 78,795.27

Exempt Property 37,848.92

Homestead 5,000.00

Year’s Support 13,656.00 164,708.42

Net Estate $707,544.90

30% of Net Estate $212,263.47

After determining Thirty Percent (30%) of the net estate as set out in

[Tenn. Code Ann.] § 31-4-101(a) and (b), the Parties agreed that said

maximum Elective Share amount is $212,263.47, but the Parties

disagreed as to how that amount is to be reduced pursuant to [Tenn.

Code Ann.] § 31-4-101(c).

(Paragraph numbering in original omitted). Although not a part of the parties’ written stipulation,

it is abundantly clear from the record that Ms. Soard filed a petition for an elective share.
1

The statute was subsequently amended by 2004 Tenn. Pub. Acts 866, § 2, effective June 8, 2004.

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II.

Tenn. Code Ann. § 31-4-101, as it existed1 at the time of Mr. Soard’s death, i.e., July 14,

2003, provides as follows:

(a)(1) The surviving spouse of an intestate decedent, 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:

If the decedent and the surviving spouse The elective-share

were married to each other: percentage is:

less than 3 years 10% of the net estate

3 years but less than 6 years 20% of the net estate

6 years but less than 9 years 30% of the net estate

9 years or more 40% of the net estate

(2) For purposes of determining the total number of years to be

applied to the computation provided in this subsection, 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 and

personal property subject to disposition under the provisions of 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.

(c) After the elective-share amount has been determined in

accordance with the foregoing 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 which

were transferred, or deemed transferred, to the surviving spouse or

which were for the benefit of the surviving spouse. For purposes
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hereof, the decedent’s gross estate shall be determined by the court in

the same manner as for inheritance tax purposes pursuant to [Tenn.

Code Ann.] §§ 67-8-301 et seq., 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 the unsecured creditors of the decedent’s

estate.

(Emphasis added). For ease of reference, we will hereinafter sometimes refer to this statute as “the

elective-share statute” or “the current elective-share statute.”

III.

The issue before us can be simply stated as follows:

Does the “reduction” language set forth in subsection (c) of Tenn.

Code Ann. § 31-4-101 – “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 which were transferred, or deemed

transferred, to the surviving spouse or which were for the benefit of

the surviving spouse” – contemplate the deduction, from a surviving

spouse’s percentage share of the net estate, of the value of the

surviving spouse’s exempt property, homestead allowance, and year’s

support allowance?

The trial court held that “subsection (c) precisely states that all assets includable in the

decedent’s gross estate which are payable to the surviving spouse must be credited against the

maximum [e]lective [s]hare to determine the actual amount of the [e]lective [s]hare payable to the

surviving spouse.” In its order, the trial court concluded that

based [up]on the clear language of [Tenn. Code Ann.] § 31-4-101(c),

the amounts paid to the surviving spouse for [h]omestead, [y]ear’s

[s]upport and [e]xempt [p]roperty, as assets included in the

decedent’s gross estate, are sums which must be credited against the

maximum amount available as an [e]lective [s]hare to determine the

amount “payable” to the surviving spouse.

As far as we can determine, this case presents a question of first impression.
2

The record does not reveal whether Mr. Soard died testate or intestate. Our resolution of the issue before us

is not affected by whether he died with or without a will.

3

Since the parties stipulate that these items are proper deductions from the surviving spouse’s maximum elective

share, and there is no issue before us regarding the propriety of these deductions, we do not find it necessary to address

whether each of these deductions is appropriate under subsection (c) of the elective-share statute.

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Since the material facts are not in dispute, our de novo review is one of law and, hence,

unburdened by a presumption of correctness as to the trial court’s judgment. S. Constructors, Inc.

v. Loudon Co. Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

IV.

In the instant case, the parties stipulate that the gross estate is valued at $872,253.32.

However, they do not identify the component parts of the “gross estate.” Furthermore, there is

nothing in the other parts of the record which sets forth with specificity the items included within

this concept. However, since the “gross estate” stipulation reflects that it is made “[p]ursuant to

[Tenn. Code Ann.] § 31-4-101(b),” we assume that this starting-point number of $872,253.32

comprises, in the words of the aforesaid statutory provision, the value of “all of the decedent’s real

and personal property subject to disposition under the provisions of the decedent’s will or the laws

of intestate succession.”2 It is clear that this language contemplates assets that pass in probate and

not those that pass outside of probate.

The parties further stipulate – again pursuant to Tenn. Code Ann. § 31-4-101(b) – that the

value of the “net estate” is $707,544.90. They also agree that the maximum elective-share amount,

determined in accordance with subsections (a) and (b) of the elective-share statute, is $212,263.47.

Finally, they stipulate that subsection (c) of the elective-share statute requires that Ms. Soard’s

elective-share amount be reduced by the following items:

3

Social Security Payment $ 250.00

VA Death Benefit 600.00

Joint Assets Passing Outside Probate 20,891.82

Total $21,741.82

We now reach the point of the parties’ very sharp disagreement. The estate argues that, even though

Ms. Soard’s award of exempt property, homestead allowance, and year’s support allowance have

already been subtracted from the value of “the decedent’s real and personal property subject to

disposition under the provisions of the decedent’s will or the laws of intestate succession” as a part

of the computation of the net estate under subsection (b) of the elective-share statute, these three

items must be subtracted again, this time from the value of the widow’s percentage share of the net

estate, in order to arrive at the elective-share amount payable to the surviving spouse. The estate

maintains that the further deduction of these three statutory entitlements is mandated by subsection

(c) of the elective-share statute.
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V.

The effect of the parties’ disagreement in monetary terms is illustrated thusly:

 Widow’s Estate’s

Computation Computation

Elective-share amount per

 subsections (a) & (b) $212,263.47 $212,263.47

Less: Agreed-upon deductions 21,741.82 21,741.82

 $190,521.65 $190,521.65

Less: Widow’s Exempt Property,

 Homestead, and Year’s Support N/A 56,504.92

Elective-Share Amount due Widow $190,521.65 $134,016.73

VI.

Ms. Soard argues that the critical language in subsection (c) of the elective-share statute

pertains to assets that are transferred to a surviving spouse outside the estate. She points to language

in our case of In re Estate of Morris, 104 S.W.3d 855 (Tenn. Ct. App. 2002), which she claims is

supportive of her position. She also relies upon an illustration of how the elective-share statute is

applied as found in 18 Albert W. Secor, Tennessee Practice: Tennessee Probate § 10.5 (2d ed.

2002). She notes that in neither authority is mention made of subtracting exempt property,

homestead or the year’s support allowance from the surviving spouse’s percentage share of the net

estate.

The widow further argues that the estate’s interpretation of the statute runs afoul of wellestablished rules of statutory construction. She contends that to construe the statute as requiring the

deduction twice of the aforesaid three items “would frustrate the purpose of the legislation.” She

argues that the interpretation placed on the statute by the estate renders this legislative enactment

“absurd, unjust or futile.” Finally, the widow argues that the double deduction of these three items

“would not be sensible, would work a manifest inconvenience, would produce an absurd result and

would be unjust.”

VII.

The estate counters by pointing out that the “reduction” concept embodied in subsection (c)

of the elective-share statute was not in the elective-share statute in effect prior to the amendments
4

1997 Tenn. Pub. Acts. 426. Section 26 of Chapter 426 provides that the amendments shall apply to all estates

of decedents dying on or after January 1, 1998. As previously noted, Mr. Soard died July 14, 2003.

5

Tenn. Code Ann. § 67-8-303(a)(1)(A)-(E), a part of the Tennessee inheritance tax scheme, provides as follows:

(a) A tax is imposed for the general uses of the state, under the conditions and

subject to the conditions and limitations prescribed in this part, upon transfers, in

trust or otherwise, of the following property, or any interest therein or accrued

income therefrom:

(1) When the transfer is from a domiciliary of this state:

 (A) Real property situated within this state;

 (B) Tangible personal property, except such as has an actual situs without

this state;

 (C) All intangible personal property;

 (D) Proceeds of insurance policies, except as provided in this part; and

 (E) Proceeds of certain employee benefit trusts and plans to the extent

provided in this part; . . .

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effective January 1, 1998.4 Those amendments deleted the earlier version of the elective-share

statute in its entirety. The estate reads the language of subsection (c) broadly to mean, in the

language of the estate’s brief, that there is a credit against the surviving spouse’s percentage share

of the net estate for “all items in the gross estate that the spouse otherwise receives.” The estate

notes that subsection (c) of the elective-share statute expressly provides that the “gross estate,” as

that concept is used in that subsection, “shall be determined by the court in the same manner as for

inheritance tax purposes.” Tenn. Code Ann. § 31-4-101(c). The estate contends that exempt

property, homestead and a year’s support are not excluded from the gross estate for inheritance tax

purposes. In support of this argument, the estate relies upon the provisions of Tenn. Code Ann. §

67-8-303 (2003),5 a section of the inheritance tax statutory scheme describing the types of property

subject to that tax. As can be seen, the property which is subject to the tax is broadly stated and does

not contain an express exclusion for exempt property, homestead and a year’s support. The estate

argues that subsection (c) is unambiguous, and that our obligation is to enforce its provisions

regardless of how we feel about the justice of its application to the facts of the case at bar.

VIII.

In this case, we are called upon to interpret and apply the provisions of the elective-share

statute. In Eastman Chem. Co. v. Johnson, 151 S.W.3d 503 (Tenn. 2004), the Supreme Court

recited many of the general principles pertaining to statutory construction:

Issues of statutory construction are questions of law that this Court

reviews de novo without any presumption of correctness.
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Our duty in construing statutes is to ascertain and give effect to the

intention and purpose of the legislature. “‘Legislative intent is to be

ascertained whenever possible from the natural and ordinary meaning

of the language used, without forced or subtle construction that would

limit or extend the meaning of the language.’”

When the statutory language is clear and unambiguous, we must

apply its plain meaning in its normal and accepted use, without a

forced interpretation that would limit or expand the statute’s

application. Where an ambiguity exists, we must look to the entire

statutory scheme and elsewhere to ascertain the legislative intent and

purpose. The statute must be construed in its entirety, and it should

be assumed that the legislature used each word purposely and that

those words convey some intent and have a meaning and a purpose.

The background, purpose, and general circumstances under which

words are used in a statute must be considered, and it is improper to

take a word or a few words from its context and, with them isolated,

attempt to determine their meaning.

Id. at 506-07 (citations omitted). In construing legislation, courts must harmonize, if possible, all

parts of the legislature’s enactment. See Marsh v. Henderson, 424 S.W.2d 193, 196 (Tenn. 1968)

(“A statute should be construed, if practicable, so that its component parts are consistent and

reasonable. . . . Inconsistent phrases are to be harmonized, if possible, so as to reach the legislative

intent.”). See also State v. Netto, 486 S.W.2d 725, 729 (Tenn. 1972).

“A construction will be avoided, if possible, that would render one section of the act

repugnant to another. Or one that would produce an absurd result.” Tenn. Elec. Power Co. v. City

of Chattanooga, 114 S.W.2d 441, 444 (Tenn. 1937) (citations omitted). See also Turner v. Eslick,

240 S.W. 786, 789 (Tenn. 1922).

“When the legislature enacts provisions of a uniform or model act without significant

alteration, it may be generally presumed to have adopted the expressed intention of the drafters of

that uniform or model act. However, when the legislature makes significant departures from the text

of that uniform act, we must likewise presume that its departure was meant to express an intention

different from that manifested in the uniform act itself.” Heirs of Ellis v. Estate of Ellis, 71 S.W.3d

705, 713-14 (Tenn. 2002) (citations omitted).

IX.

Our interpretation of the current version of the elective-share statute begins with a look back

at the prior version of that statute. Before January 1, 1998, the elective-share statute in Tennessee

provided as follows:
6

At one point in the resolution, the body is referred to as a “committee.” In all other parts of the resolution, it

is referred to as the “commission.”

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(a) A decedent’s surviving spouse has the right to elect to take an

elective share. The elective share is one third (1/3) of the decedent’s

net estate as defined in subsection (b). The right to elect an elective

share is available to the surviving spouse of an intestate decedent and

a testate decedent if the surviving spouse elects against the decedent’s

will. When the elective share is determined, it is exempt from the

unsecured debts of the decedent incurred after April 1, 1977. In

determining the elective share, it is not reduced by any estate or

inheritance taxes.

(b) The net estate includes all of the decedent’s real and personal

property subject to disposition under the terms of the decedent’s will

or the laws of intestate succession reduced by funeral and

administration expenses, homestead, exemptions and year’s support.

Tenn. Code Ann. § 31-4-101 (repealed effective January 1, 1998, by 1997 Tenn. Pub. Acts 426, §

17.

Under the earlier version of the statute, the method of calculating the surviving spouse’s

elective share was clear and relatively simple to apply. A surviving spouse had an absolute right “to

elect to take an elective share.” Once the election was made, the surviving spouse, regardless of the

length of his or her marriage to the decedent, was entitled to one-third of a relatively well-defined

concept, i.e., the value of the real and personal property that passes under the decedent’s will or the

laws of intestate succession reduced by funeral and administration expenses, homestead, exempt

property, and a year’s support allowance. There were no further reductions.

In 1995, the 99th Tennessee General Assembly adopted House Joint Resolution No. 223

appointing a Special Joint Commission6 whose charge was to “[s]tudy all aspects of the probate law

in Tennessee with a view towards adopting the Uniform Probate Code by revising, updating, and

clarifying the law so that it may give clear and consistent guidance to those using it and those

affected by the law in order to ensure, to the extent possible, the uniformity of probate law from any

legal uncertainties related to this important process; and [r]ecommend legislation to effect the above

goals.” (Numbering in original omitted). The commission was directed to file “the report of its

findings and any recommendations concerning legislation, with the 99th General Assembly no later

than December 15, 1995.”

As directed by the General Assembly, the commission filed a report setting forth its factfinding process, its decision-making process, and its recommendations. The report notes that the
7

It appears that the legislature adopted all of the legislation proposed by the commission.

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commission found “little or no public support for the adoption of the Uniform Probate Code in its

entirety.” At another point in the report, the commission noted that it “decided that a wholesale

revision of the probate law at this time is unnecessary and that the Uniform Probate Code, which also

covers fields other than those typically considered to be of a probate nature, should not be adopted

as a whole for various reasons.”

The commission made 15 numbered recommendations, one of which is the following:

To modernize the elective share for surviving spouses to take into

account the length of the marriage and to redefine how the amount is

ascertained.

Its recommendations were, in the language of the report, “incorporated into a draft of a legislative

bill which accompanie[d] [the] report.”

By Chapter 426, Public Acts of 1997, the General Assembly, without discussion, adopted

verbatim that portion of the proposed legislation dealing with a surviving spouse’s elective share by

deleting the prior elective-share statute in its entirety and by substituting the current version of the

elective-share statute.7 As previously noted, the new version became effective January 1, 1998, and

applies to all estates of decedents dying on or after that date.

The current version of the elective-share statute retains a few of the features of the old statute,

i.e., the right to elect is still unconditional; the starting point of the calculation, once the percentage

of entitlement is established, is still “the decedent’s real and personal property subject to disposition

under the provisions of the decedent’s will or the laws of intestate succession”; the value of the

aforesaid concept is still reduced by funeral and administration expenses, homestead, exempt

property, and the year’s support, before the percentage of entitlement is applied to the balance; and

the surviving spouse’s entitlement under the statute is still not subject to the claims of the decedent’s

unsecured creditors.

While there are similarities between the two versions, there are striking differences, both in

concept and language.

The current version of the elective-share statute replaces the “one size fits all” approach of

the old statute – that all surviving spouses were previously entitled to a one-third elective share –

with the phased-in approach of the Uniform Probate Code (“the UPC”) under which the percentage

amount of a surviving spouse’s elective share increases as the length of the parties’ marriage

increases. While adopting the UPC’s approach, the current statute utilizes only four levels of

percentage entitlement compared to the 16 levels of the UPC. The current statute does adopt the UPC

provision that all years of marriage between the parties are counted even if those periods “may be

separated by divorce.”
8

Clarifying amendments were adopted in 1993.

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While the current version of the elective-share statute retains the starting point of “the

decedent’s real and personal property subject to disposition under the provisions of the decedent’s

will or the laws of intestate succession,” the new version, in subsection (b), introduces a new

deduction from the concept: “secured debts to the extent that secured creditors are entitled to realize

on the applicable collateral.” Tenn. Code Ann. § 31-4-101(b).

As can be seen, the new version of the elective-share statute has significantly changed the

method of determining the surviving spouse’s elective-share percentage. Under the new approach,

some surviving spouses will receive more than the previous one-third share while others will receive

less. While this was a major change introduced by the amendments effective January 1, 1998, it is

not the one at issue in the case at bar. That “distinction” belongs to the commission’s

recommendation as to “how the [elective-share] amount is ascertained.”

X.

In adopting House Joint Resolution No. 223, the General Assembly was influenced by the

1990 adoption8 of a new version of the UPC by the National Conference of Commissioners on

Uniform State Laws. The underlying theory behind the significant revisions to the elective share

sections of the UPC has been described thusly:

In constructing a new elective share, the drafters of the UPC applied

two theories, both described in the General Comment to the elective

share section of the 1990 UPC. Unif. Prob. Code art. II, pt. 2, gen.

cmt. (1993). One theory, the marital partnership theory, views

marriage as an economic partnership to which both spouses

contribute productive effort. This theory holds that each spouse is

entitled to one-half of the economic gains of the marriage. The other

theory, the need-based theory, holds that a decedent spouse should

provide for the surviving spouse. A married couple’s moral duties to

one another, the expectations of the surviving spouse and public

concern that the surviving spouse not be left to depend on the state for

support form the basis of this theory. Taken together, the two

theories establish a duty of spousal support that arises in marriage and

continues to some degree after death. Therefore, each spouse has a

right to a share of the economic gains of both spouses during the

marriage.

To implement the need-based theory, the 1990 UPC creates a

supplemental elective share of $50,000. To the extent the elective

share, calculated as a percentage of the augmented estate, is less than

$50,000, the surviving spouse is entitled to a supplemental elective
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share equal to the difference. Stated another way, the minimum

amount of a spouse’s elective share is $50,000. Because the

augmented estate includes the surviving spouse’s assets, the spouse

will receive a supplemental elective share only if his or her own

assets are less than $50,000.

To implement the partnership theory, the 1990 UPC creates an

augmented estate that includes property owned and controlled by both

spouses–probateproperty and property passing under will substitutes.

The guiding principle of giving each spouse one-half of the marital

property made it necessary to look at the assets owned by both

spouses and not just property controlled by the decedent. In contrast

to the prior UPC, the 1990 UPC makes no exceptions for insurance

[,] annuities and pensions.

A difficulty faced by the drafters of the 1990 UPC is that not all

property owned by spouses is marital property. A spouse may have

inherited property or acquired property before marriage. To avoid a

post-death determination of marital and separateproperty, the drafters

devised a phased-in elective share based on the length of the

marriage. The goal of this provision was to approximate increased

marital sharing and the increased contribution to the acquisition of

marital assets as a marriage endures. The drafters concluded that

“[b]ecause ease of administration and predictability of result are

prized features of the probate system,” a “mechanically determined

approximation system” makes sense. Unif. Prob. Code art. II, pt. 2,

gen. cmt. (1993).

Susan N. Gary, Share and Share Alike? The UPC’s Elective Share, 12 Prob. & Prop. 18, 20 (1998).

The author opined as follows regarding the amendments to the Tennessee elective share statute

effective January 1, 1998:

A law adopted in Tennessee in 1997 borrows concepts from the UPC

and uses them to modify what is still essentially a traditional elective

share statute. The new Tennessee statute phases in the elective share

percentage from 10% for less than three years of marriage to 40% for

marriages lasting nine years or more. The percentage is applied to the

“net estate,” which the law defines as the probate estate less certain

secured debts, funeral and administration expenses and family

allowances. Property that the surviving spouse receives, whether

probate or nonprobate property, reduces the elective share. It

appears that the law will charge disclaimed interests against the

surviving spouse because the statute refers to assets “which were
9

The “augmented estate” as that language is used in the UPC’s elective share provisions has the following

expansive components: the decedent’s net probate estate, the decedent’s nonprobate transfers to others, the decedent’s

nonprobate transfers to the surviving spouse, and the surviving spouse’s property and nonprobate transfers to others.

See Unif. Probate Code § 2-203 (amended 1993). Under the UPC, the surviving spouse’s elective-share is stated in terms

of “the elective-share percentage of the augmented estate.” Unif. Probate Code § 2-202 (emphasis added).

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transferred, or deemed transferred . . . or which were for the benefit

of the surviving spouse.” Tenn. Code Ann. § 31-4-101(c)(1997).

The Tennessee statute considers the augmented estate, determined by

reference to the Tennessee inheritance tax statute, only to reduce the

surviving spouse’s share. If the decedent dies holding only

nonprobate assets, the value of the net estate, and thus the elective

share, will be zero. . . .

Id. at 22 (emphasis added).

It is clear to us that the changes to the Tennessee elective-share statute effective January 1,

1998, while adopting some of the thrust of the 1990 changes to the UPC elective share provisions,

depart from the model act in significant and substantial ways. First, the 1997 amendments did not

adopt the UPC’s concept of a minimum elective share stated in monetary terms. It is clear that there

is no such monetary minimum share under the current version of our statute. Second, as pointed out

in the article just quoted, the current elective-share statute considers the concept of an “augmented

estate” to reduce the surviving spouse’s elective share, but continues to use the “net estate” concept

in defining the amount to which the surviving spouse’s percentage is applied.9

The differences between the current version of the elective-share statute and the provisions

of the UPC relating to a surviving spouse’s elective share are so significant as to lead us to conclude

that the legislature’s departure “was meant to express an intention different from that manifested in

the uniform act itself.” Heirs of Ellis, 71 S.W.3d at 713-14. Therefore, even though it is clear that

the Special Joint Commission was directed by the General Assembly to study the probate laws of

Tennessee “with a view towards adopting the [UPC],” the commission and later the legislature itself

chose not to adopt the expansive and far-reaching language of the UPC as it pertains to the

methodology of computing the surviving spouse’s elective share, other than the adoption of the

theory of the UPC that the percentage share should be tied to the length of the parties’ marriage. We

conclude from this that the intention behind the UPC is of no particular help in determining whether

the language of subsection (c) of the elective share statute contemplates the reduction of homestead,

exempt property, and year’s support from the surviving spouse’s percentage share of the net estate.

We have discussed the UPC extensively simply because of the General Assembly’s charge

to the commission. In view of this charge, we felt it essential to expressly point out that the

legislature’s 1997 amendments evidence a general intention to go in a direction other than the one

charted by the UPC. For the purposes of illustration and comparison, we have attached a copy of

the UPC provisions addressing the surviving spouse’s elective share, as last amended in 1993, as an
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appendix to this opinion. In the interest of brevity, we have omitted the official comments and

illustrations.

XI.

The estate urges us to hold, as did the trial court, that the elective-share statute requires that

the surviving spouse’s statutory entitlements to homestead, exempt property, and a year’s support

allowance be deducted twice as a part of the computation outlined in the elective share statute, i.e.,

first, in reducing the gross estate passing in probate to arrive at the net estate subject to the surviving

spouse’s percentage share, and, second, from the product of the multiplication of the net estate by

the surviving spouse’s percentage share. We agree with the widow in this case that such an

interpretation leads to an absurd result.

We find ambiguity in the wording of the statute. We note that while the legislature referred

to the three statutory entitlements by name in subsection (b), there is no such explicit reference in

subsection (c). The fact that the legislature referred to these statutory entitlements by name in

subsection (b) clearly shows that they were on the mind of that body when it adopted the 1997

amendments. Query: If the legislature had intended, in subsection (c), to mandate the deduction of

these same three items a second time in this continuing statutory computation, why did it not

expressly refer to them as it did in subsection (b)? In other words, if the legislature had intended to

include these items in the general language of subsection (c), why did it not refer to the decedent’s

“gross estate” as “the gross estate, including the surviving spouse’s homestead, exempt property, and

a year’s support”or by the use of similar language?

The current version of the elective-share statute is hardly a model of clarity as far as the

interplay between subsections (b) and (c) is concerned. While the author quoted earlier in this

opinion may be right when she opines that our legislature “borrow[ed] concepts from the UPC and

use[d] then to modify what is still essentially a traditional elective[-]share statute,” it is clear to us

that the legislature rejected the comprehensive statutory scheme thought to be necessary by the

Commissioners on Uniform State Law to effectuate their desire to adopt a “marital partnership

theory” and a “need-based theory” in the elective-share concept. By adopting bits and pieces from

the earlier version of the elective-share statute as well as concepts from the UPC and then “cutting

and pasting” them with some new language into a much shorter version of an elective-share statute,

the legislature has created more questions than answers. If the legislature has rejected the UPC’s

dual theories mentioned above, either in whole or in part, and we believe it has, what is the theory

behind the current version of the elective-share statute? What is the purpose or theory underlying

the deduction set forth in subsection (c)? We are left to ponder these and related questions.

Assuming that the estate is correct in its interpretation of subsection (c), what is the rationale behind

the deduction of the surviving spouse’s statutory entitlements from the maximum elective share after

these very same items have already been “cleared out” of the gross estate as a part of the computation

leading to the calculation of that same maximum elective-share amount?
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We have concluded, and so hold, that the language of subsection (c) of the elective-share

statute cannot, consistent with the clear meaning of subsection (b), be read to include homestead,

exempt property, and a year’s support. 

We believe the reason behind the deduction of the surviving spouse’s statutory entitlements

from the gross probate estate under subsection (b) is clear: it is to remove these items from the assets

passing in probate before the surviving spouse’s percentage is applied. The deduction at this point

in the computation ensures that the surviving spouse does not get these three statutory entitlements

plus a percentage of the same items. We believe the deduction at this stage of the statutory

computation was intended to avoid “double-dipping.” Thus, the deduction from the probatable

assets is reasonable and logical.

We cannot say the same for a subsequent deduction of the same items as a part of what is

essentially a continuing statutory computation. Such a deduction, in the overall scheme of things,

is illogical and defies explanation. We recognize that it is the prerogative of the legislature to adopt

such legislation as it deems appropriate so long as it does not offend a provision of the United States

Constitution or the Tennessee Constitution. Certainly, it has the authority to enact legislation which

appears on its face to be illogical should it choose to do so. However, we believe that, had the

legislature intended to deduct these three items a second time in the same statutory computation, it

would have referred to them by name in subsection (c) just as it did in subsection (b).

If one of the purposes behind the current version of the elective-share statute is to reduce the

surviving spouse’s elective share to compensate for the surviving spouse’s receipt of homestead,

exempt property, and a year’s support, we believe the legislature could have accomplished this

objective in one of at least two ways. First, it could have – and we believe it did – construct a

computation that removes these items from the gross probatable estate before the surviving spouse’s

percentage share is applied. Second, had it chosen not to pursue the foregoing approach in carrying

out this presumed objective, it could have structured a computation providing that (a) the percentage

share is applied to the gross probatable estate without prior deduction for the statutory entitlements

and (b) the result of that computation would then be reduced by the statutory entitlements. It does

not make any sense, however, to do the first and then apply a significant variation of the second,

resulting in a deduction of these entitlements at the beginning of the computation and then again after

the maximum elective share has been determined.

We believe the estate’s interpretation is suspect for another reason. As can be seen from the

illustration on page six of this opinion, the widow, having chosen to pursue her right to homestead,

exempt property, and a year’s support, would receive, under the approach of the estate and the trial

court, an elective share of $134,016.73 plus her three statutory entitlements of $56,504.92 or a total

of $190,521.65. If she had chosen not to receive her statutory entitlements, her elective share would

have been calculated as follows:
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Gross Estate $872,253.32

Less:

ORNL Mortgage $29,408.23

Funeral and Admin. Exp. 78,795.27 108,203.50

Net Estate $764,049.82

30% of Net Estate $229,214.94

Thus, as the estate and the trial court interpret the statute, the widow would receive more, i.e.,

$229,214.94, if she foregoes her three statutory entitlements than she would receive, i.e.,

$190,521.65, if she claimed them We refuse to read the statute in a way that attributes to the General

Assembly an intention to discourage a surviving spouse from pursuing homestead, exempt property,

and a year’s support, all entitlements granted by that same legislative body.

We have attempted to construe subsections (b) and (c) of the elective-share statute in a way

that will harmonize these two provisions. See Marsh, 424 S.W.2d at 196. We believe the only way

they can be harmonized is if subsection (c) is read so as not to include the surviving spouse’s

homestead, exempt property, and year’s support among the items to be deducted from the surviving

spouse’s percentage share of the net estate.

In reaching our decision, we expressly do not rely upon two of the authorities cited by the

widow, i.e., In re Estate of Morris, 104 S.W.3d 855 (Tenn. Ct. App. 2002), and 18 Albert W. Secor,

Tennessee Practice: Tennessee Probate § 10.5 (2d ed. 2002). We do not believe that either of these

authorities is implicated by the facts and issue now before us.

We recognize that the “reduction” concept embodied in subsection (c) was not in the

elective-share statute prior to January 1, 1998. We also recognize that the concept of the “value of

all assets” as found in subsection (c) of the elective-share statute is different from, and more

expansive than, the concept of the assets passing through probate as addressed in subsection (b).

However, we are not persuaded that the concept in subsection (c) is broad enough to compel, for a

second time, the deduction of the surviving spouse’s three statutory entitlements as a part of the

statutory computation of the amount of the surviving spouse’s elective share. We specifically hold

that the language of subsection (c) was not intended to include, and does not include, the statutory

entitlements set forth in Tenn. Code Ann. §§ 30-2-101 (2001), 30-2-102 (2001), and 30-2-209

(2001). We believe a contrary holding with respect to the statutory entitlements would lead to an

absurd result. We decline to go there.

XII.

The judgment of the trial court is reversed. This case is remanded to the court below for

further proceedings. Costs on appeal are taxed to the Estate of Frank Soard.
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_______________________________

CHARLES D. SUSANO, JR., JUDGE