Detailed Answer

This FAQ explains how heirs can use mediation to resolve an elective-share dispute under Tennessee law. It assumes heirs have concerns about a surviving spouse’s claim against an estate (an “elective share”) and want to try a negotiated resolution instead of immediate litigation. This is general information only and not legal advice.

What is an elective share in Tennessee?

An elective share is a statutory right that allows a surviving spouse to claim a portion of a decedent’s estate instead of what the spouse would receive under the will. Tennessee’s elective-share provisions and related probate rules are part of Tennessee law; for an entry point to the statutes, see the Tennessee Code on the Tennessee General Assembly website: https://www.capitol.tn.gov/. If you are a non-spouse heir (e.g., child or sibling) or an interested party, you may be directly affected when a spouse files an elective share claim.

Why try mediation?

Mediation can be faster, less expensive, and less adversarial than going to probate court. It gives heirs and the surviving spouse control over outcomes, allows creative solutions (e.g., buyouts, payment plans, property transfers, life estates), and preserves family relationships when possible. Mediation is confidential in Tennessee, which encourages candid negotiation.

Step-by-step process heirs can follow to resolve an elective-share dispute through mediation

1. Confirm legal standing and deadlines. Determine who the interested parties are (personal representative, surviving spouse, heirs, legatees). Identify any deadlines that could affect the elective share claim or probate timeline. Because timing can be critical, consult the Tennessee Code or an attorney promptly. See the Tennessee General Assembly site for statutory guidance: https://www.capitol.tn.gov/.
2. Gather documentation. Collect relevant documents before mediation: the decedent’s will, trust instruments, estate inventory, asset valuations, account statements, deeds, beneficiary designations, marriage certificate, prenuptial or postnuptial agreements, and any prior correspondence about the estate. Organize basic arithmetic showing estate value and how the elective share might be computed.
3. Talk with the personal representative and the spouse (or their counsel). Open a line of communication about using mediation. If the spouse or the personal representative is represented by counsel, you can propose mediation through their counsel to coordinate logistics and agree on a neutral mediator.
4. Select a mediator experienced in probate/elective-share matters. Choose a neutral mediator with experience in estate, probate, and family financial disputes. Probate-focused mediators understand valuation issues, marital property claims, and how to draft enforceable settlement terms that a probate court will accept.
5. Agree on mediation scope and logistics. Put in writing who will attend, what authority attendees have to settle, the date and place (or virtual platform), estimated length, and mediator fees and how fees will be split. Also agree whether mediation will be confidential and whether anything discussed can be used in later court proceedings.
6. Exchange information in advance. To make mediation productive, exchange key documents and a short settlement position paper ahead of the session: a statement of facts, brief valuation, and the party’s proposed solution. This reduces surprises and narrows issues.
7. Prepare your negotiation goals and alternatives. Identify your bottom-line positions and your Best Alternative to a Negotiated Agreement (BATNA). Examples of mediated solutions include splitting specific assets, a cash buyout of the elective share, installment payments, or creating a life estate or trust funding to satisfy the spouse’s claim.
8. Attend mediation and use the process. Typical mediation includes opening statements, joint session discussion of facts and positions, breakout caucuses with the mediator, and iterative bargaining. Use the mediator to test settlement options, resolve valuation disputes, and craft solutions that the probate court can later approve if necessary.
9. Memorialize any agreement properly. If you reach a settlement, put it in writing. The agreement should be clear about the assets transferred, payment terms, tax and debt responsibility, releases of claims, and whether the parties will ask the probate court to enter the agreement as a consent order. In Tennessee, mediated settlement agreements can be enforced as contracts and often are submitted to the probate court for approval and entry as an order.
10. File with probate court if required. Many elective-share disputes involve assets under probate court supervision. If the settlement affects estate administration, file a stipulation or proposed consent order with the probate court to ensure the resolution is reflected in the estate proceedings and to resolve any remaining contested matters officially.
11. Plan for fallback if mediation fails. If mediation does not resolve the dispute, timely preserve your rights—this may include filing a motion, responding to the spouse’s election, or pursuing discovery. Court litigation is the fallback when negotiation fails.

Common mediation outcomes for elective-share disputes

• Cash buyout: heirs or the estate pay the spouse a lump sum or installment plan instead of transferring specific property.
• Asset transfer: specific real property or accounts are transferred to satisfy the spouse’s statutory share.
• Trust or life estate: the estate funds a trust or grants a life estate to meet the spouse’s needs while preserving remainder interests for heirs.
• Structured settlement: combination of smaller immediate payments and long-term security like an annuity or trust distributions.

Practical examples (hypotheticals)

Example A — Heirs and spouse agree to a buyout: The heirs value the decedent’s home and offer the spouse a cash buyout equal to the present value of the elective share; the probate court approves the agreement and the estate pays from liquid assets.

Example B — Life estate compromise: The spouse receives a life estate in a home and limited income from an investment account; heirs keep the remainder interest and make no immediate sale.

When mediation may not be appropriate

Mediation may be less useful if a party is uncooperative, there are urgent statutory deadlines that prevent negotiation time, the estate lacks liquidity to implement realistic settlements, or fraud/undisclosed assets are suspected and require court-ordered discovery.

Statutes and where to look

For statutory guidance on elective shares and probate procedures, consult the Tennessee Code available through the Tennessee General Assembly website: https://www.capitol.tn.gov/. For mediation confidentiality rules and probate practice, check the relevant probate court rules and Tennessee statutes accessible at the same site. If you reference a specific statute or deadline, verify the current text on the official site or with counsel.

How mediation agreements are enforced

Once memorialized and signed, a mediation settlement is normally an enforceable contract. When it affects administration of an estate, parties typically ask the probate court to incorporate the agreement into a consent order so the court can enforce terms against the estate. The mediator can advise on wording to make the agreement clear and court-ready.

Disclaimer: This article provides general information about Tennessee law and mediation strategies. It is not legal advice. For advice about your particular situation and deadlines, consult a Tennessee probate attorney promptly.

Helpful Hints

• Start collecting documents immediately — mediation works best when everyone shares key facts early.
• Choose a mediator experienced in probate and elective-share disputes.
• Agree in writing on mediator fees and confidentiality rules before the session.
• Know your BATNA so you understand when a proposed settlement is better than litigation.
• Consider proposing creative solutions (life estate, buyout, trust funding) to bridge valuation gaps.
• Get any mediated settlement reviewed by counsel and, if necessary, approved by the probate court to make it enforceable.
• Act quickly to preserve statutory rights and avoid missing deadlines; if unsure, consult an attorney right away.