TBA Law Blog

Posted by: John Day on May 1, 2016

Journal Issue Date: May 2016

Journal Name: May 2016 - Vol. 52, No. 5

Tenn. Code Ann. §§ 20-5-106(a) and 20-5-110(a) tell us that the surviving spouse has the superior right to bring a wrongful death case.[1] Absent the surviving spouse’s affirmative waiver of that right or the circumstances discussed below, the spouse’s right trumps any right of the decedent’s executor, administrator or children to file a wrongful death action and control the litigation. But under what circumstances does a surviving spouse lose the right to bring and maintain the action?

First, if the surviving spouse intentionally kills the decedent, the murderer loses his or her right to the action for wrongful death.[2] In such cases, the decedent’s next of kin have the right to bring the wrongful death action.[3]

Second, the right is lost if the surviving spouse is found to have (a) abandoned the decedent or (b) willfully withdrawn from the decedent during the last two years of the marriage.[4] The children or next of kin of the decedent must establish that the surviving spouse abandoned or willfully withdrew from the decedent. “Abandonment” means that “[t]he husband or wife has abandoned the spouse or turned the spouse out of doors for no just cause, and has refused or neglected to provide for the spouse while having the ability to so provide.”[5] If two years have passed since the time of abandonment or willful withdrawal, there is a rebuttable presumption that the surviving spouse abandoned the deceased spouse.[6]

The only appellate court to consider the issue has concluded that a trial court need not find the plaintiff abandoned his or her spouse for two years before he or she is at risk of losing the right to bring an action because of “abandonment.”[7] In fact, the appellate court affirmed a trial judge’s ruling that the conduct of the surviving spouse toward his spouse rose to the level of “abandonment,” thereby, eliminating his right to bring the case, even though the judge also found that the objectors failed to prove by a preponderance of the evidence that the surviving spouse had willfully withdrawn from his wife for two years before her death.[8] Thus, if one “abandons” his or her spouse the right to control wrongful death litigation is lost even if the period of abandonment is less than two years.

Third, one of the other proper plaintiffs to the action may challenge the right of the spouse to serve or continue to serve as the decedent’s representative in the case. The argument in such cases is that the spouse has demonstrated bad faith, fraud, or lack of diligence in representing the interests of other beneficiaries.[9]

In summary, a spouse who is physically and mentally able to prosecute a wrongful death case will typically be granted the right to file suit and control the litigation, even if another person with secondary standing to sue attempts to wrestle control away. 


  1. Foster v. Jeffers, 813 S.W.2d 449, 451 (Tenn. App. 1991). The spouse also has the right to “effect a bona fide compromise” of the wrongful death claim and bind the beneficiaries. Tenn. Code Ann. § 20-5-110(b).
  2. House v. Gibson, 827 S.W..2d 310, 311 (Tenn. Ct. App. 1991). Tenn. Code Ann. § 31-1-106 also provides that one who intentionally kills another, including a spouse, forfeits any right to inherit or otherwise receive property or other money as a result of the death. Thus, one who intentionally kills a spouse would not have any right to recover any portion of wrongful death proceeds.
  3. Id.
  4. Tenn. Code Ann.  § 20-5-106(c)(1). The procedure for bringing an issue of abandonment or willful withdrawal to the attention of the court is set out in Tenn. Code Ann. § 20-5-106(c)(3).
  5. Tenn. Code Ann. § 36-4-101(13), which Tenn. Code Ann. § 20-5-106(c)(1) cites as the definition for “abandonment.”
  6. Tenn. Code Ann. § 20-5-106(c)(1).
  7. Baugh v. United Parcel Service Inc., 2015 WL 1539595, *5 (Tenn. Ct. App. March 31, 2015). Note that the Tennessee Supreme Court denied review of this decision and designated the opinion as “not for citation.”
  8. Id. at *3-5. It is not just the right to file and control the litigation if one abandons or willfully withdraws from a spouse. The right to recover or share (as appropriate) in wrongful death proceeds is also lost. Tenn. Code Ann. § 20-5-106(c)(1).
  9. See Busby v. Massey, 686 S.W.2d 60, 63 (Tenn. 1984) (challenge to administrator’s role as wrongful death plaintiff denied when challenger asserted disagreement with the administrator concerning the fairness of the settlement, but she failed to charge him with negligence, bad faith or misconduct).

John Day

JOHN A. DAY is a trial lawyer with offices in Brentwood and Murfreesboro. He recently released the 300-page 2016 supplement to Day on Torts: Leading Cases in Tennessee Tort Law – 3rd Edition (2010).