When an individual dies as a result of the wrongful acts of another, there is often a question as to who gets to bring an action against the tortfeasor. Is it the surviving spouse or is it the surviving children?
In Tennessee, the law provides the deceased’s right of action passes to that person’s surviving spouse and, in the case of no surviving spouse, to the person’s children or next of kin. Tenn. Code Ann. § 20-5-106. In other words, the surviving spouse has the superior right to bring a wrongful death action; the children may only bring an action if there is either no surviving spouse or the surviving spouse has waived his or her right to the action. See Foster v. Jeffers, 813 S.W.2d 449, 451 (Tenn. Ct. App. 1991). As the Tennessee Supreme Court has explained:
Because multiple actions may not be brought to resolve a single wrongful death claim, the statutes carefully prescribe the priority of those who may assert the action on behalf of the decedent and any other beneficiaries. In a dispute between the surviving spouse and the children of the decedent as to who may maintain the action, the surviving spouse clearly has “the prior and superior right above all others….” Foster v. Jeffers, 813 S.W.2d 449, 451 (Tenn. Ct. App. 1991); see also Tenn.Code Ann. § 20–5–107 (1994); Busby v. Massey, 686 S.W.2d 60, 62 (Tenn. 1984). In fact, the children of the deceased may maintain an action only if the decedent is not survived by a spouse or if the surviving spouse has waived his or her right of priority. See Tenn.Code Ann. § 20–5–107; Foster, 813 S.W.2d at 453. Consequently, once the surviving spouse has asserted his or her right or priority, the statutes give to the surviving spouse complete “control over the right of action until he or she waives that right.” Estate of Baker ex rel. Baker v. Maples, 995 S.W.2d 114, 115 (Tenn. Ct. App. 1999).
Kline v. Eyrich, 69 S.W.3d 197, 206 (Tenn. 2002); see also Spires v. Simpson, 2016 WL 1697832, at *5 (Tenn. Ct. App., Apr. 26, 2016).
With that being said, there are several avenues under which a surviving spouse may be deemed to have waived his or her right of priority. For instance, the children of the deceased may establish the spouse abandoned the deceased or otherwise was fully withdrawn from the deceased for a period of two years. If such is shown, the right of priority will be waived. See Tenn. Code Ann. § 20-5-106. The spouse may also waive his or her right by inaction, see Foster, 813 S.W.2d at 453 , or by permitting a child’s suit to stand without objection, Koontz v. Fleming, 65 S.W.2d 821, 824 (Tenn Ct. App. 1933).
In sum, a surviving spouse has the superior right to bring an action against the deceased’s tortfeasor unless he or she is deemed to have waived such right, in which case the deceased’s surviving children attain the superior right.