Probate, trust, guardianship and inheritance litigation
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Surviving Spouse Rights Arkansas

Arkansas surviving spouses have many rights (also known as widow’s rights) afforded to them under Arkansas law, including:

  • Intestate Share
  • Homestead Rights
  • Statutory Allowance
  • Elective Share

The State of Arkansas sets forth these surviving spouse rights in several statutes.  It is important that a surviving spouse learn about the rights they have under Arkansas law, and makes sure that all probate deadlines are met.

Surviving Spouse Rights in Arkansas If There Is No Valid Will (Intestacy)

When someone dies without a will they have died intestate.  Dying intestate means that Arkansas law will control who gets a decedent’s assets.  A surviving spouse’s right to a share of a deceased spouse’s estate if there is no will depends on the length of the marriage and decedent’s other survivors. See AR Code section 28-9-214.

Surviving Spouse’s Share – No Surviving Children or Descendants

If a decedent dies and has no surviving children or descendants, the surviving spouse’s share of decedent’s intestate estate depends on the length of the marriage.  If the marriage was at least three years long, the surviving spouse has the right to the entire estate.  If the marriage was shorter than three years, the surviving spouse receives ½ of the intestate estate.

Surviving Spouse’s Share – Surviving Children Or Descendants

If the decedent dies with surviving children or descendants, the surviving spouse takes nothing under intestacy.

Surviving Spouse Exemptions and Allowances

A surviving spouse in Arkansas is also entitled to certain rights and allowances.

Homestead Rights

If the owner of a homestead dies leaving a surviving spouse, but no children, and the surviving spouse has no separate homestead in his or her own right, the homestead shall be exempt, and the rents and profits thereof shall vest in the surviving spouse during his or her natural life.

If the owner leaves one or more children, then the child or children shall share with the surviving spouse and be entitled to 1/2 of the rents and profits until each of them turns 21.  Each child’s right ends at age 21, and the shares go to the younger children and then all to the surviving spouse.

 To qualify for homestead rights, the surviving spouse must have been married to the decedent for over a year.  AR Code 28-39-201.

Statutory Allowance

A surviving spouse also is permitted an allowance of personal property, and two months of residential living and reasonable sustenance.  AR Code 28-39-101 and AR Code 28-39-102.

Elective Share Rights of Surviving Spouse

If the marriage was at least one year, a surviving spouse can elect to take against decedent’s will.  The election confers dower or curtesy rights in decedent’s property.

Surviving Spouse’s Rights – One or More Children

If the decedent also left behind surviving children or descendants, the surviving spouse has rights to a 1/3 life estate of decedent’s real estate interests during the marriage, and 1/3 absolute ownership of personal property owned by the decedent.  ARC 28-11-301 and ARC 28-11-305.

Surviving Spouse’s Rights – No Surviving Child or Descendants

If the decedent had no surviving child or descendants, the surviving spouse is entitled to ½ of decedent’s real property owned at any time during the marriage.  This amount can be reduced to 1/3 by creditors.  The surviving spouse is also entitled to ½ absolute ownership in decedent’s personal property owned at death, which can be reduced to 1/3 by creditors. ARC 28-11-307.

The Arkansas Supreme Court decided in Thompson_v._Thompson that a decedent’s revocable trust assets are included in the elective share calculation when transfers to the trust were made in an attempt to defeat the surviving spouse’s marital rights.

Deadline for Electing To Take Elective Share

The surviving spouse must file the election for the elective share within 1 month after the time period for filing creditor claims.  Arkansas Stat. § 28-39-403.  Claims against the estate are barred if not filed with the Court or verified to the personal representative within six months after the date of the first publication of notice to creditors.

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