In Tennessee Can a Surviving Spouse Recover in a Wrongful Death Suit for Death of Spouse After Abandonment?

Analysis:  The Tennessee wrongful death statute is found in T.C.A. § 20-5-106 and T.C.A. § 20-5-107.  A specific provision in this statute provides that the right to institute and collect any proceeds from a wrongful death action is prohibited for certain surviving spouses.  Specifically, if the children and next of kin establish the surviving spouse abandoned the deceased spouse or willfully withdrew for a period of two years, then the surviving spouse cannot recover under the Tennessee wrongful death statute.  Specifically, T.C.A. § 20-5-107(e)(1) and (2) provides as follows:

(e)(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the surviving spouse has abandoned the deceased spouse as described in § 36-4-101(a)(13) or otherwise willfully withdrawn for a period of two (2) years.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.

So, what is the definition of “abandonment” of a spouse as described in this statute?  This definition is found in T.C.A. § 36-4-101(a)(13) which provides as follows:

(13) The 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;

As a result, the abandoning spouse cannot institute or recover wrongful death benefits under Tennessee law (for the death of their spouse).  However, under subsection (e)(4), a claim cannot be dismissed based on a statute of limitations violation if the only person who instituted a timely wrongful death claim is the surviving spouse guilty of abandonment.  Subsection (e)(4) provides as follows:

(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.

If the case would be dismissed based on a statute of limitations defense in this context, then the court is required to substitute the appropriate party to prevent this from happening. 

One other important thing to point out about this statute.  Can the allegedly responsible defendant assert abandonment by the surviving spouse as a defense and obtain dismissal of the wrongful death claim on this basis?  I think this is very unlikely based on the plain language of the statute.  It specifically states “if the children or next of kin establish” and does not provide an avenue for the defendant to establish this in order to defeat the wrongful death claim.  As a result, this plain language appears to prevent a defendant from using this defense to defeat a wrongful death claim.