Prosecution of Action by Representative or Surviving Spouse or Next of Kin

  1. Law
  2. Tennessee Code
  3. Civil Procedure
  4. Abatement and Survival of Actions
  5. Prosecution of Action by Representative or Surviving Spouse or Next of Kin

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  1. The action may be instituted by the personal representative of the deceased or by the surviving spouse in the surviving spouse's own name, or, if there is no surviving spouse, by the children of the deceased or by the next of kin; also, without the consent of the personal representative, either may use the personal representative's name in bringing and prosecuting the suit, on giving bond and security for costs, or in the form prescribed for paupers. The personal representative shall not, in such case, be responsible for costs, unless the personal representative signs the prosecution bond in an individual capacity.
  2. In no event shall a parent be permitted to recover through an action commenced pursuant to subsection (a) until all child support arrearages, together with interest on the child support arrearages, at the legal rate of interest computed from the date each payment was due, have been paid in full to the parent ordered to receive the support or to the parent's estate if deceased.
  3. Notwithstanding any law to the contrary, a parent who has intentionally refused or neglected to pay any support for a child for a two-year period, or for the life of the child, whichever is less, when subject to a court order requiring the payment of child support and who has intentionally refused or neglected to contact the child or exercise visitation during such period, shall not be permitted to recover through an action commenced pursuant to subsection (a) and § 20-5-106.
  4. Nothing in this section shall be construed to prevent the institution of an action by a child with respect to the death of a parent.
    1. Notwithstanding any other law to the contrary, the right to institute and the right to collect any proceeds from a wrongful death action granted by this section to a surviving spouse shall be waived, if the children or next of kin establish the surviving spouse has abandoned the deceased spouse as described in § 36-4-101(a)(13) or otherwise willfully withdrawn for a period of two (2) years.
    2. If the period of two (2) years has passed since the time of abandonment or willful withdrawal then there is created a rebuttable presumption that the surviving spouse abandoned the deceased spouse for purposes of this section.
    3. In an action under this section, the child or next of kin shall serve the surviving spouse with process as provided in the Tennessee Rules of Civil Procedure or by constructive service as may otherwise be provided by law.
    4. In no event shall any action for wrongful death abate, or the statute of limitations bar, an action solely as a result of a finding the surviving spouse's rights are waived. Instead the court shall substitute the proper party.

Code 1858, § 2292 (deriv. Acts 1849-1850, ch. 58, §§ 1, 2; 1851-1852, ch. 17); Acts 1871, ch. 78, § 2; Shan., § 4026; mod. Code 1932, § 8237; Acts 1975, ch. 284, § 2; T.C.A. (orig. ed.), § 20-608; Acts 1994, ch. 939, § 1; 2003, ch. 25, § 1; 2011, ch. 366, § 2.

Amendments. The 2011 amendment added (e).

Effective Dates. Acts 2011, ch. 366, § 4. May 30, 2011.

Cross-References. Substitution of parties, Tenn. R. Civ. P. Rule 25.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 637.

Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, § 50; 25 Tenn. Juris., Witnesses, § 10.

Law Reviews.

Professional Responsibility — Kline v. Eyrich: Use of the Common Fund Doctrine in Wrongful Death Actions in Tennessee: Preventing Unjust Enrichment or Simply Unjust?, 34 U. Mem. L. Rev. 233 (2003).

Torts — Hataway v. McKinley: Moving From Spacial Relationships to Significant Relationships, 23 Mem. St. U.L. Rev. 257 (1992).

Cited: Stewart v. Crook Sanatorium, 17 Tenn. App. 589, 69 S.W.2d 259, 1933 Tenn. App. LEXIS 93 (Tenn. Ct. App. 1933); Caldwell v. Metcalfe, 458 F. Supp. 847, 1977 U.S. Dist. LEXIS 12616 (E.D. Tenn. 1977); Johnson v. Metropolitan Government of Nashville & Davidson County, 665 S.W.2d 717, 1984 Tenn. LEXIS 745 (Tenn. 1984); Mangrum v. Owens, 917 S.W.2d 244, 1995 Tenn. App. LEXIS 649 (Tenn. Ct. App. 1995); Alexander v. Beale St. Blues Co., 108 F. Supp. 2d 934, 1999 U.S. Dist. LEXIS 22251 (W.D. Tenn. 1999); Foster v. St. Joseph Hosp., 158 S.W.3d 418, 2004 Tenn. App. LEXIS 491 (Tenn. Ct. App. 2004); Holliman v. McGrew, 343 S.W.3d 68, 2009 Tenn. App. LEXIS 58 (Tenn. Ct. App. Feb. 5, 2009); Taylor v. Lakeside Behavioral Health Sys., — S.W.3d —, 2010 Tenn. App. LEXIS 198 (Tenn. Ct. App. Mar. 15, 2010); Givens v. Josovitz, 343 S.W.3d 76, 2010 Tenn. App. LEXIS 705 (Tenn. Ct. App. Nov. 9, 2010).


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