### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Septem ber 21, 200 4 Session
I N 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 per sonal representative of he r hus band’s estate. The parties differ as to the correct interpretation of Tenn. Code Ann. § 31-4-101 (2001), the statute setting forth the crite ria pursuant to which a surviving spouse’s elective share is computed. The trial court adopted the estate’s construction of the statute and subtrac ted the widow’s exempt pr op er ty, homestead

allowance, and y

ear’s support allowance from the value of her percentag e share of the net estate in arriving at the elective- share amount to which she is entitled. We disag ree with the trial court’s interpre tation of t he statute . Accor

dingly , we rev erse the

judgmen t of that c ourt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court

Reversed; Case Remanded
C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS , P.J., and D. M ICHAEL S WINEY , J., joined. Robert N. Goddard, Mary ville, Tennessee, for the appellant, Sarah Soard. Martha S. L. Black, Mar

yville, Tennessee , for the appellee, Estate of Frank Soar d.
OPINION
I.
The parties filed a stipulation of material facts in the trial court. The stipulation pr ovides, in pertine nt part, a s 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.-2- 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 Soar d 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, Sa ra h S oa rd is en ti tl ed to $3 7, 84 8. 92 in Ex em pt Pr op er ty.
Inasmuch as Frank and Sarah Soard had been married more than six years but less than nine years, the Parties agreed that Sarah Soard wa s entitled to an Elective Share of Thirty Percent (30%) of the net esta te as set out in [Tenn. Code Ann.] § 31-4-101(a).

Pursuant to [Tenn. Code Ann. ] § 31-4-101 (b), the Parties a greed to the fo llow ing d etermination of the net estate as of November 11, 2003, the Parties acknowledging, howeve r, that the administrative expenses are subject

to increase based on attorney s fees and expenses incurred in this Elective Share litigation:
Gross Esta

te $872,253.32

Less : ORNL Mor tgage $29,408.23 Funeral and Admin. Exp. 78,795.27 Exempt Prope

rty 37,848.92 Homestead 5,000.00 Year’s Support 13,656.00 164,708.42
Net Estat e $707,544.90
30% of Ne

t Estate $212,263.47
After determin ing Thir ty Percent (30%) of the net

estate a s set out in [Tenn. Code Ann.] § 31-4-101(a) and (b), theParties a greed that said maximum Elective Share amount is $212,263. 47, b ut the Parties disagreed as to how that amount is to bereduced pursuant to [Tenn. Code Ann.] § 31-4-101(c). (Paragraph

numbering in original

omitted). Althoug

h not a part of the parties’ written stipulation, it is abundantly clear f

rom the record that Ms. Soard filed a petition for an elective sha re.1 The st atut e was subs equent ly amended by 2004 Tenn. Pub. Act s 866, § 2, ef fective June 8, 2004. -3- II.
Tenn. Code Ann. § 31-4-101, as it existed 1 at the time of Mr. Soard’s deat h, i.e. , July 14, 2003, pro vides as f

ollows: (a)(1) The surviving

spouse of

an intestate decedent, or a surviving spousewho elects agai

nst a dec edent’s

will, has a right of

election, unless limitedby s u bsection (c), to take an elective-share amount equal to the value of

the decedent’s net estate as defined in subsection (b), determ ined b y the lengt h of ti me the survi ving spo use and the decede nt wer e married to each other, in accor dance with the following schedule:
If the deced

ent and the survivi

ng spous e The elective-share were married to each other: percen tage is : less than 3 years 10% of the net esta te 3 years but less than 6 y

ears 20% of the net esta te 6 years but less than 9 y

ears 30% of the net esta te 9 years or more 40% of the net esta te (2) F or purposes of determining the total number of y ears 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 sepa

rated by divorc e. All years ma

rried shall be counted

toward the total number of yea rs for purposes of this section. (b) The value of the net

estate includes all of the decedent’s rea l and personal property subjec

t to d isp osition under the provisions of the decedent’s will or the laws of intestate succession, reduced by the follo wing: secured debts to the extent that secured creditors are
e nt itled to realize on the applicable collateral, funeral a nd administration expenses, and award of ex empt property, homestea d allowance and y

ear’s support allowance. (c) After the elective-share amount has be en determine d i n accordancewith the f

orego ing su

b sections (a) and (b), the amount payable to the surviving spou

se by the estate shall be reduced by the value of all asse ts 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 spous e . For p urposes-4- hereof, the decedent’s gross estate shall be determined by the court in the same manner as for inheritan ce ta x p urposes pursuant to [Tenn. Code Ann.] §§ 67-8-301 et seq., except that the va lu e o f a ny life estate or trust for the lifetime benefit of the surviving spouse shall be actuarially de

termined. (d) The elec

tive-sha re amoun t pay able to th e surviving spouse is exempt fromthe claims of the unsecured creditors of the dec edent’s estate. (Emphasi s added). For ease of refere nce, we will hereinafter sometimes refer to this statute as “the elective-share statute” or “the cur rent elective-share statute.”

III.
The issue before us can be simply stated a s follows:

Do es the “reduction” languag e set forth in subsection (c) of Tenn. Code Ann. § 31-4-101 – “the amount pay able to the survi

ving spo use by the esta te shallbe reduc ed by

the value of all ass ets includ

able in the decede

nt’s gr oss estate

which we

re tran sf erred , or deemed transferred, to the surviving spouse or which were for the benefit of the surviving spouse” – contemplate the deduction, from a surviving spous e’s percentage share of the net estate, of the value of the surviving spouse’s exempt property, homestead allowance, an d year’ s support allowance?
The trial cou

rt held tha

t “subsection (c) p

recise ly s tates tha

t all asset s in cludable in the deced ent’s gross e state which are payabl e to th e surv ivin g spous e must be cred ited a ga inst th e maximum [e]lective [s]hare to deter mine the a

ctual amo unt of the [e]lective

[s]hare pa

ya ble 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]om estead, [y]ear’s [s]upport and [e]xempt [p] r operty, as a ssets included in the decedent’s gross e state, a

re sums which must be credited against the maximum amount

available as an

[e]lective [s]hare to determine the amount “paya

ble” 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 testat e or intest ate. Our resoluti on of the issue bef ore us is not affec ted b y whethe r he d ied with or witho ut a will.

3 Since th e parties st ipulate t hat these i tems are proper deductions from the survivi ng spouse’s maximum elective share, and there is no is sue before us rega rding the pro priety o f these d edu ctions, w e do not find it necessa ry to addre ss whether each of t

hese deduct ions i s appropriat e under su bsecti on (c) of

the el ecti ve-sh are st atut e. -5- Since the material facts are not in dispute, our de novo review is one of law and, hence, unburdened

by a presumptionof correctness as to the trial court’s judgme nt. S. Constructors, Inc. v. Loudon Co. Bd. of Educ. , 58 S.W.3d 706, 710 (Tenn. 2001).

IV.

Inthe instant case, t

he parti es stipulate that the gross estate is valued at $872,253.32. However, th ey d o n ot id en ti fy the co mponent pa rts of the “gross estate. ” Furthe

rmore, there is nothing in the other parts of the reco rd which sets forth with specif icity the items i

ncluded w

ithin this concep t. Howeve

r, since the “gr oss estate ” stipula

tion reflects that it is made “[p]ursuant to [Tenn. Code Ann.] § 31-4-101(b),” we assume that t his starting-point number of $872,253.32 comprise s, in the words of the aforesaid statutory provision, the value of “all of the decedent’s rea l 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 langua ge contemplates assets that pass in probate and not those that pass outside of probate.
The parties further stipulate – again pursuant to Tenn. Code A nn. § 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 th e elect

ive-sha re statut e, is $212,263.47. Fi na ll y, they

stipulate that subse ction (c ) of the e lective- share st atu te requires that Ms. Soard’s elective -share

amount be

reduce d by

the follow

ing items : 3 Social Security Pay

ment $ 250.00 VA Deat h Benef it 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 a rgues that, even

thou gh Ms. Soar d’s a ward of exe mpt p roperty, homestea

d allowance, and y

ear’s support allowance have already been sub tracted

from the value of “

the dece dent’s r

eal and p ersonal

propert y s ubject 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 ele ct ive-shar e statute, these three items must be subtracted again , this time from the value of the widow’s percentage share of the net estate , in ord er to ar

rive at the elect

ive-sha re amoun t pay able to th e survivi

ng spous e. The e state maintains that the further

deduction of these three statutory entitlements is mandated by subsection (c) of the elective-share statute.-6- V.
Th e e ff ec t o f t he pa rt ie s’ di sa gr ee me nt in mo ne ta ry t er ms is il lu st ra te d t hu sl y:
Widow’s Estate’s Computation Computation Elective-share amount per subsections (a) & (b) $212,263.47 $212,263.47 Less: Agree d-upon deductions 21,741.82 21,741.82 $190,521.65 $190,521.65 Les s: Wi do w’ s E xe mp t P ro pe rt y, Homestea

d, and Ye ar’s Supp ort N/A 56,504.92
Elective-Share Amount due Widow $190,521.65 $134,016.73

VI.
Ms. Soard argues that the critical lang uage in subsection (c) of the elective- sha re statut e pertains to assets that are transferred to a surviving spouse outside the es tate. She po ints to lan guage inour case of In re Estate

of Morris , 104 S.W.3d 855 (Ten n. Ct. App. 2002), wh

ich she c laims is supportive of her

position. She also relies upon an illustrati on of how t

he elective-sha

re statut e is applied a s found in 18 A lbert W. Secor, Tennessee Practice: Tennessee Probate § 10.5 (2d ed. 2002). She notes t

hat in nei

th er authori ty i s m en ti on ma de of su bt ra ct in g e xe mp t p ro pe rt y, homestead

or the year’ s supportallowance from the surviving spouse’s perc entage share of the net estate.
The widow further argues that the estate’ s interpretation of the statute runs afoul of wel l

established

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 th at the interpretation placed on the statute by the estate renders this legislative enactment “absurd, unjust or futile.” Finally, the widow a rgues that the double

deduction of these

three ite ms “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 theelective -share statute in effec t prior to t

he amend ments4 1997 Tenn. Pub. Acts. 4 26. Secti on 26 of Chapter 426 provi des that the amendment s shal l apply to all estat es of dec edent s dyi ng on or aft er Jan

uary 1, 1998. As pre viou sly note d, Mr. Soa rd die d Jul y 14, 2003.

5 Tenn. Cod e Ann. § 6 7-8-303 (a)(1)(A )-(E), a part of the T ennessee inheritanc e tax scheme , provides as fo llows: (a) A tax is imposed for the general uses o f the state, under the cond itions a n d subject to the conditions and li mitat ions pres cribed in this par t, upon transfers, in trust or oth erwise , of the follo wing p rop erty, or a ny interes t th erein or accrued in come t her ef rom: (1) When the tr ansfe r is from a domici liar y of t his s tate : (A) Real propertysit uated wi thi n thi s st ate; (B) Tangible personal property, except such as has an act ual sit us without thi s st ate; (C) All inta ngible perso nal pro perty; (D) Proceeds of insurance policies, except as provided in this part ; and (E) Proceeds of certain employee benefit t rusts and plans t o the extent pro vided in this par t; . . . -7- effective January 1, 1998. 4 Those amendments deleted the e arlier version of the elective-share statute in its entirety. The estate r eads the languag e of subsection (c) broadly to mean, in the langua ge of the estate’s brief, that there is a credit ag ainst the surviving spouse’s percentage share of the net e state for

“all item s in the gr

oss estate that the sp ouse othe

rwise re ceives. ” The es tate notes that subsection (c) of the elective-share statute e xpressly provides that the “g ross estate,” as that concept is used in that subsection, “shall be determined by the court in the same manner as for inherit ance tax purposes.” Tenn. Code Ann. § 31-4-101(c). The estate conte nds that exempt pr op er ty, homestead and a y ear’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 statutor y sc heme des cribing

the ty pes of pr operty subject to thattax. As can

be seen, the prope

rty which is su

bject to the tax is broadly stated a nd does notcontain an express exclusion for exempt pro

perty , homeste ad and a

ye ar’s sup

port. The esta

te argues that subsection (c) is unambiguous, and tha t our obli gation is to enforce its provisions regardless of how we fe el about the justice of its application to the facts of the case at bar

. VIII.

Inthis case, we are called upon to interpret and a pply the provisions of the el ective- share statute. In Eastman Chem. Co. v. Jo hnson , 1 51 S.W.3d 503 (Tenn. 2004), the Supreme Court recited many

of the general principles pertaining to statutory construction:

Issues of statutory construction ar e questions of l aw that this Court reviews de novo wi

thout any presumpt ion of cor rectne ss.-8- Our duty in constr uing sta tutes is to asc ertain and give effect to the intention and purp ose of the legisla ture. “‘ Legislative i

ntent is to be ascertained

wheneve r possible from the natural and ordinary meaning of the language used, without force d or subtle construction

that would limit or extend the meaning of the language.’ ”
When the statutory lang

uage is clear and unambig uo us, w e must apply its plain meaning in its normal and accepted use, w ithout a forced interpretation that would limit or expand th e statute’s applicat io n. Where an ambiguity exists, we must look to the entire statutory scheme a nd elsew here to a scerta

inthe legislative intent and purpose. The statu

te must be c onstrued

in its entir

ety , and it sho

uld be assumed that the legislature used each wor d purposely and that those words convey

some intent and have a

meaning and

a purpose. The backgrou

nd, pu rpose, and general circ umstances under which words are use d in a statu

te must be c onsidere d, and it is improper to take a word or a few words from its context and, with them isolated, attem pt to determ ine th eir me aning.
Id . at 506-07 (citations omitted). In construing le gislation, courts mu st harmonize , if possib le, all parts of the legislature’s enactment. See Marsh v. Henderson , 424 S.W.2d 193, 196 (Tenn. 1968) (“Astatute should be construed, if practicable, so that its compon ent part s are consistent and reasonable.

. . . Inconsistent phrases are to be harmonized, if possible, so as to reach the leg islative intent.”). See also State v. N etto , 486 S.W.2d 725, 729 (Tenn. 1972).
“A construction will be avoide d, if pos sible, 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).
“Whenthe leg islature

enacts provisions

of a unif

orm or mod

el act wi thout significant alteration, it may

be generally

presumed

to have adopted the expressed intention of the drafters of that uniform or

mode l act . How ever, whe n the leg islat ure m akes sign ific ant depar

ture s fro m the t

ext of that uniform act, we must likewise pres ume that it s depart

ure 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 curr ent vers ion of the

elective -share

statute begins with a look back at the prior version of that statute. Befor e January 1, 1998, th e elect

ive-sha re statut e in Tennessee provided as follow s:6 At one p oint in the resolu tion, the b ody is re ferred to as a “c omm ittee.” In all other p arts of the resolu tion, it

is referre d to a s the “co mm ission.” -9-

(a) A decedent’s surviving spouse has the rig ht 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 spouseelects against the decedent’s will. When the elective share is determined, it is exem pt from the unsecured

debts of the decedent incurred after April 1, 1 977 . In determining the elective share, it is not reduced by any estate or inherita nce taxes

. (b) The net estate includes all of the decedent’s rea l and personal propert y subject to disposition under the terms of the de cedent’ s will
or the laws of intestate succession reduced by funeral and administration expenses, homestea d, exemptions and y

ear’s s upport.

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 o f calculating the surviving spouse’s elective share w as clea

r and re latively

simple to a

pply . A surviving spou se had an absolute right “to elect to take an elective share.” Once the election was made, the surviving spouse, regardless of the length o f his or he

r marria ge to the decede nt, was entitled to one-third of a relatively well-defined concep t, i.e. , the value of the real and personal proper ty that passes under

the decedent’s will or the laws of intestate su ccession reduced by funeral and administration expenses, homestead, exempt propert y, a nd a y ear’s s upport al lowance . There

were no further reducti ons.
In1995, the 99th Tennessee General Assemb ly adopted House Joint Resolution No. 223 appointing a Special Joint Commission 6 whose charge was to “[s]tudy all aspects of the probate law in Tennessee with a view towards adopting the Unifor m Probate Code by revising , updating, and clarifying the law so

that it may

give cl ear and

consist ent guidance to t hose using

it and thos e 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 direct ed to file “the re port of its findi ngs and any re commendations concerning legislation, with the 99th Gener al Assembly no later than December 15, 1995.”
As directed by the

General Ass embly , the comm ission file d a repor

t setting forth its f

actfinding process, its decision-making process, and its recommenda tions. The rep ort notes that the7 It appears that t he legisl ature adopted all of the l egislat ion proposed b y the commission. -10- commission found “li

ttle or no public support for the adoption of the Uniform Probate Codein its entirety.” At anothe

r point in the repor

t, the com

mission note d that it “d

ecided t hat a who lesale revisionof the probate law at this time is unnecessary and that the Uniform Probat

e Code, w hich also
covers fields other than t

hose ty pically consider ed to be of a probate nature, should not be adopted as a whole for various reasons.”
The com miss ion m ade 15 numb ered re comme ndati ons, o ne of wh ich is the fo llow ing:

To modernize the elective share for surviving spouses to tak e into account the leng th of the ma

rriag e and to r

edefine how the a

mount is ascertained.
Its recommendations were , in the language of the re port, “incorporated into a draft of a legislative bill which accompanie[d] [the] report.” By Chapter 426, Public Acts of 1997, the General Assem bl y, without discussion, adopted verbati m 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 curr ent 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 dy ing 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 percen tage of entitleme nt is established, is still “the decedent’s real and personal proper ty subject to disposition under the provi sions of the decedent’s will or the laws of intestate succession”; the va lue of the afores aid co ncept i s still reduced by fune ral and administration expenses, homestead, exempt pr op er ty, and the yea

r’s support, before the percentag e 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
unsecur ed cred itors.
While there are similarities between the two ve

rsions, th ere ar

e striking differe nces, both in concept and language

. The curren

t version of the el ective- share st

atutereplaces the “one size fits all” approach of the old statute – that all surviving spouses were prev iously entitled to a one-third elective share – with the phase d-in approach of the Uniform Proba te Cod e (“the UPC”) under which the pe rcenta ge amount of a surviving spouse’s elective share incr eases as the length of the parties’ mar r iag e increa ses. While adopting the UPC’s approach, the current sta tute utilizes only four levels of percen tage entitlement compared to the 16 le

vels of th e UPC. The cur

rent stat ute does a dopt the U

PC provision that all years

of marriage between the pa rties are counted even if those periods “may be separated by

divorce.”8 Clari fy ing amendmen ts were a dopted i n 1993.
-11-

While the current version of the e le ctive-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 deductionfrom the concept: “secured debts to the exten t that secu red c redi tors a re en title d to re alize on the applicable collateral.” Tenn. Code Ann. § 31-4-101( b).
As can b e seen, the new version of the elective-sha re statute has significantly changed the method of determining the surviving spouse’s elective-share per centage. 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 amendme

nts effe ctive January

1, 1998, it i s notthe on e at issue in t he case at bar. That “distinction” belongs to the c ommission’s recommendation as to “how the [elective-share] amount is ascerta ined.”

X.

Inadopting House Joint Resolution No. 223, the G eneral Assembly

was influenced by

the 1990 adoption 8 of a new version of the UPC by the National Conferen ce of Commissioners on Un iform S tate Laws. The under lying theory

behind the significant revisions to the elective share
se ct io ns of

th e U PC ha s b ee n d es cr ib ed th us ly:

Inconst ructi ng a new elective share, the drafters of the UPC applied two theorie s, both

described

in the General Comment to the elective sh are secti on of the 1990 UPC. Unif. Prob. Code art. II , pt. 2, gen. cmt. (199 3). One theory, the marital partnership theory , views marri age as an ec onomic pa rtnersh ip to which

both sp ou ses contribu te produ ctiv e effor

t. This the ory

holds that

each spo use is entitled to one-ha lf of the economic gains of the marriage. The other t he or y, the need-based theory , holds that a decedent spouse shou l d provide for the surviving spouse. A married couple’ s moral du

ties to
one an other, th e expecta tions of the

surviving

spouse an

d public
concern that the su

rviving spouse no t be left t

o depend on the sta te for support f orm the basis of this theory. Take n together, the two theories establish

a duty of spousal

support that arises in marriage and continues to some degree a fter de ath. The refore , each sp ouse has a right to a shar e of the e conomic g ains of bo th spouses d uri ng the marriage.

To implement

the need

-based t heory, the 1990

UPC crea

tes a supplemental elec tive share of $50,000. To the extent the elective share, calculated as a percentag e of the augmented estate, is less than $50,000, the survi ving spouse is entitled to a supplemental elective-12- shar e equal to the difference. Stated another way , the minimum amount of a spous e’s ele ctive sh are is $5 0,000. Because the augmented

estate in cludes th e survivi

ng spous e’s asse

ts, the spo

use will receive a supplemental elective s hare on ly if his or her own assets are less than $50,000.

To implement

the part n ers hip theory, the 1990 UPC crea tes an augment ed

estate that includ

es prope rty owned an d control led by

both spouses–p robate pro perty

and prop erty

passing under wi ll substitute s. The guiding p rinciple of giving each spouse one -half of the marital propert y made it necessary

to look a t the assets owned by bo th spouses and not

just property controlled by the decede

nt. In contras t to the prior UPC, the 1990 UPC makes no except io ns for insurance [,] annuitie s and pen sions.
A difficulty fac ed by the dr afters o f the 1990

UPC is that n

ot all propert y owned by spouses

is marita l proper ty. A spouse

may have inherited property or a

cquired property

before marriage. To a

void a post-dea thdetermination of ma

rital and se parate propert

y, the draf ters devised a phased-in elective share based on the le ngth of the marriage. The goal of this pr o vision was to approximate increased marital sharing and t he increased contribution to the acquisition of marital assets as a marriage endure s. The drafters concluded that “[b]ecau se ea se of

ad mi ni st ra ti on an d p re di ct ab il it y o f res ult are prized features of the probate sy stem,” a “me chanically de termined approximation system” makes sense. Unif. Prob. Code art. II , pt. 2, gen. cmt. (1993).
Susan N. Gary, Share and Share Alike? TheUPC’s Elective Sh are , 12 Prob. & Prop. 18, 20 (1998). The author opined as follows regarding the amendments to the Tenne sse e elect ive shar e statute effective January

1, 1998:
A law adopte

d in Tenne

ssee in 19 97 borrows

concepts from the UPC and uses them to modify w

hat is still essentially a traditional elective share statute . The new Tennesseestatute phases in the elective share percen tage from 10%

for less than three ye ars of marriage to 40% for marriages lasting nine ye ars or more. The percentag e is applied to the “net estate,” which the law de fi nes as the probate estate le ss certa

in secured debts, fu

neral a nd adminis t ration expenses an d family allowanc es. Property that the surviving spouse receives, whe th er probate or nonprob ate prope

rty , reduces the elective share. I t appears that the la

w will cha

rge dis c lai med interests against the surviving spouse because th e statute refers to assets “which were9 The “augmented estate” as t hat language is used in the UPC’s elective shar e provisions ha s the foll owing expansive compone nts: t he decedent’s net probate estate, the decedent’s nonprobate transfers to othe rs, the de ced ent’s nonp rob ate transfers to the surv iving sp ouse , and the surviving spou se’s pro perty and nonpro bate transfers to others. See Unif. Probate Code § 2-203 (amended 1993). Und er the UPC, the surviving spou se’ s el ect iv e- sha re i s s tat ed i n t erms of “t he elect ive- share per centage of the augmented estate. ” Unif. Probate Code § 2-202 (emphasis added ). -13- transferred, or deemed transferred . . . or which were for the bene fit 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 t

he dece dent dies

holding o

nly nonproba te assets, the value of the net estate, a nd 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 ado

pting some of the t

hrust of the 1990 changes to theUPC elect ive shar e provisi ons, depart from the model act in significant and substantial way s. 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 inthe artic le just quoted, the current elective-share statute c onsiders the concept of an “augme nted estate” to reduce the surviving spouse’s elective shar e, but continues to use the “net estate” concept in defining the amount to which the surviving spouse’s perce ntage is applied. 9
The differences between the cur rent version of

the elective-share statute and the provisions of the UPC re lating to

a surviving spouse’s elective share ar e so significant as to lead us to conclude that the legislature’s departure “wa s meant to express an intention different from that manifest ed in the uniformact itself.” Heirs of Ell is , 71 S.W.3d at 713-14. Therefore, even though it is clear that the Special Joint Commission was directed by the General Asse mbly to study

the probate la

ws of Tennessee “with a

view towards adopting the [UPC],” the commission and later the legisla ture itse lf chos e not to adopt the expan sive and f ar-re aching

langua ge of the UPC as it p ertains to th e metho dolo gy

of computing the surviving spouse’s elective share , other than the adoption of the theory of the UPC t hat th e percen tage shar e should be

tied t o the leng th of t he pa rtie s’ ma rria ge. We conclude fromthis 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 re duction of homestead, exempt property, a

nd year’ s support from the surviving spouse’s percentag e share of the net estate.
We have disc

ussed the UPC extensively simply

because of the General

Assem bly’s cha rge to the commis sion. I

n vie w of th is charge, we felt it essential to expressly point out that the legislature’s 1997 amendments evidence a gener al intenti on to go in

a direction other than the one charted by the UPC. For the purpose s of illustration and comparison, we ha ve attached a copy of the UPC provisions addressing the surviving spouse’s elective share, as last amended in 1993, as an-14-

appendix to this opinion. In the interest of brevity , we have omitted the official comments and illustrati ons.
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 probat e to arrive at the net estate subject to the surviving spous e’s per centage share, and, second, from the product of the multiplication of the net estate by the surviving spo use’s percentage share. We a gree with the widow in this case that such an interpre tation lea ds to an ab surd res

ult.

We find ambiguity in the wor ding of the statute. We note that while the legislature referre d to the three statutory

entitleme nts by name in su

bsection (b), the re is no su

ch explicit

refer ence in subsection(c). The

fact tha t the leg islature

refer red to the se statutory

entitleme

nts by name in subsection(b) clear ly shows that they were on the mind of that body when it adopted the 1997 amendme nts. Que ry: If

the legislature had intended, in subsection (c), to mandate the deduction of thesesame three items a second time in this c ontinuing

statutory comp ut ation, why did it not expressly refer to them as it did in subsection (b)? In other words, if the

legisla ture 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 curren

t version of the el ective- share st

atute is ha

rdly a model of

clarity as far as the interplay betwee n su bse ctions (b ) and (c ) is conc erned. Wh ile the au thor quote d earlie

r in this opinion may be rig

ht when she opines that our legislature “borrow[ed] concepts from the UPC and use[d] then to mod

ify what is stil l essentia

lly a traditional elective[-]share statute,” it is clear to us that the leg islature

rejecte d the comprehe nsive statutory scheme thoug ht to be necessary

by the Commissioners on Uniform State Law to effe ctuate their desire to a dopt a “marit al partnership th eo ry” and a “need-based th eo ry” in the elective-share concept. By adopting bits and pieces from the earlier version o f the ele ctive-share sta tute as we ll as concepts from the UPC and then “cutting and pasting” them with some new languag e into a much shorter version of an elective-share statute, the legisla

ture has create d more que stio ns than answer s. If the legislature has rejected the UPC’s dual theorie s mentione d above, either in wholeor in par

t, and we believe it has, what is the theory behind the current version of the elective-shar e statute? What is the purpose or theory under

lying the deduc tion set forth in subs ection ( c)? We are l eft to pon der thes e and re lated que sti ons
. Assuming that the estate is correct in its interpretation of subsection (c), wha tis the rationale behind the deduction of the survivingspouse’s statutory entitlements from the maximum elective share after thesevery same

items have already

been “cleared out” of the

gross estate as a part

of the computation leading to the ca lculation of that sa me maximum e lective- share a mount?-15-

We have concluded, and so hold, that the languag e of su bsection (c) of the elective-share statute cannot, consistent with the clea r meaning of subsection (b), be read to include homestead, exempt property, and a y

ear’s support.
We believe the reason b ehind the deduction of the su

rviving spouse’s statutory entitleme nts fromthe gro ss probate

estate u nder subs ection (

b) is clea r: it is to re

move thes e items fr

om the ass ets passing in probate before the su rvivi ng spou se’s p ercent age is applied . The ded uction at this point inthe compu

tation en sures tha

t the surviving spo

use does n

ot get th ese thre e statutor

y e ntitlemen ts plus a percen tage of the same items. We believe the deduction at this stage of the statutory computationwas intended to avoid “double-dipping.” Thu s, t he deduction from t he proba table assets is r easonab le and log

ical.

We cannot say the sa

me for a subsequent deduction of the same items as a part of what is essentia lly a continuing statutory

computat ion. Such a

deduction, in the ov erall sc heme of t hings, is illogical and defies explanation. We re cog nizethat it is the prerogative of the legislature to a dopt suchlegisla

tion as it de ems appropriate so long as it does not offend a provision of the United States Constitution or the Tennessee Constitution. Certainly, it has the a uthority to enact leg

islation which ap pe ars on its face to be illogical should it choose to do so. However, we be lieve 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 curr ent vers ion of the

elective -share

statute is to reduce the surviving spouse’s elective share to compensate fo r the sur viving spouse’s receipt of homestead, exempt propert

y, a nd a y ear’s s upport, w e believ e the leg isl ature could hav e accom plished th

is objective in one of

at least t wo way s. First, it could ha

ve – and w e believ e it did – c onstruct a computationthat removes these items from the gross pr obatable estate before the surviving spouse’s percen tage share is applied. Second, had it chos en not to pursue the foregoing appr oach in carry

ing outthis presumed objective, it could have structured a computation providing that (a) th e percen tage share is applied

to the gr oss proba table estate without

prior dedu ction for th e statutory entitlem ents and (b) the result of that

computat ion would

then be reduced by

the statutory entitlements. I t does notmake any se

nse, however, to d o the firs t and then apply a sig

nificant variation of the second, resulting in a deduction of these entitlements at the beginning of the computation and then ag ain 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 rig ht to homestead, exempt pr op er ty, and a y

ear’s s upport, w ould

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 re ceive her statutory entitleme nts, her e lective share wo

uld have be en calc

ulated a s follows:-16- Gross Esta

te $872,253.32

Less : ORNL Mor tgage $29,408.23 Funeral and Admin. Exp. 78,795.27 108,203.50
Net Estat e $764,049.82
30% of Ne

t Estate $229,214.94 Thus, as the estate and the trial cou rt interpret the statute, the widow would receive more , i.e ., $229,214.94, if she fo regoe s her thr ee statu tor y entitlements than she would rec eive, i.e. , $190,521.65, if she

clai med them We

refuse to read t he statute ina way tha

t attributes to the General Assembly an intention to discourage a surviving spouse from pursuing homestead, exempt pr op er ty, an d a yea r’ s s up po rt , a ll en ti tl em en ts gr an te d b y th at sa me le gi sl at iv e b od y.
We have attempted

to construe subsections (b) and (c) of the elective-sha re statute in a way that will harmonize these two provisions. See Marsh , 424 S.W.2d at 196. We believe the only wa y t hey can be harmonized

is if subse ction (c ) is read so as not to

include t he surviv ing spou se ’ s homestead, exempt pro

perty , and y

ear’s s upport among the

items to be deducted from the surviving spouse’s percentage share of the net estate.

Inreaching our decision, we expressly do not rely upon two of the a uthoritie s 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, TennesseePractice: Tennessee Probate § 10.5 (2d ed. 2002)
. We do not belie ve that e ither of t

hese authoriti es is implic ated by the fac ts and issue now bef ore us.
We rec ognize that the “reduction” concept embodied in subsection (c ) was not in th e elective-share statu

te pr ior to Janua ry 1, 199 8. Wealso r

ecog nize that the concept of the “value of all assets” as found in subsection (c) of the elective-sha re statute is different from, and more expansive than, the

concep t of the a ssets pas sing thr ough pr obate as address ed in

s ubsection (b). However, we are not persuaded that the conc ept in

subsection (c) is broad enough to compel, for a second time, the deduction of the surviving spouse’s three statutory ent itleme nts as a part of the statutory computation of the amount of the surviving spouse’s elective share. We

specific ally

hold that the language of subsection (c ) was not intended to include, and does not include, the statutory entitleme nts set forth in Tenn. Code Ann. §§ 30-2-101 ( 2001), 30-2 -102 (2001), and 30-2-209 (2001). We believ e a contr ary holding w

ith respe ct 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 remande d to the court below for further proceedings. Costs on appeal ar e taxed to the Estate of Frank Soard.-17- _______________________________ CHARLES D. SUSANO, JR., JUDGE