Can a surviving spouse have elective share in Arkansas?
Full Question:
My niece was married for three years when her husband passed away a few weeks back in an accident. In his will, majority of his properties are left to his 12 year old child from previous marriage. Will my niece has any right to claim her share in her deceased husband’s property?
04/07/2017 |
Category: Wills and Es... » Elective Sha... |
State: Arkansas |
#35309
Answer:
Here, since your wife was married to her deceased husband for three years, she is entitled to elect against the will. Accordingly, she may receive dower in her deceased husband's real estate and personal property, in addition to homestead rights and statutory allowances. However, since the minor child of the deceased husband is not the child of your niece, she shall have to share the allowance with the child to the extent of one-half ( ½ ).
The relevant law on the elective share of the surviving spouse is as follows:
Arkansas Stat. § 28-39-401
Election by surviving spouse.
(a) When a married person dies testate as to all or any part of his or her estate, the surviving spouse shall have the right to take against the will if the surviving spouse has been married to the decedent continuously for a period in excess of one (1) year.
(b) In the event of such an election, the rights of the surviving spouse in the estate of the deceased spouse shall be limited to the following:
(1) The surviving spouse, if a woman, shall receive dower in the deceased husband's real estate and personal property as if he had died intestate. The dower shall be additional to her homestead rights and statutory allowances; and
(2) The surviving spouse, if a man, shall receive a curtesy interest in the real and personal property of the deceased spouse to the same extent as if she had died intestate. The curtesy interest shall be additional to his homestead rights and statutory allowances; and
(3) If, after the assignment of dower or curtesy, as the case may be, and the payment of all statutory allowances, taxes, and debts, and the satisfaction of all testamentary gifts and devises, there shall remain some residue of the deceased spouse's estate which is not disposed of by will, then, if the deceased spouse shall have been survived by no natural or adopted child, or the descendants of any natural or adopted child, and by no parent, brother, sister, grandparent, uncle, aunt, great-grandparent, great-uncle, great-aunt, or the lineal descendants of any of them, then the surviving spouse will take by inheritance the undisposed residue.
Arkansas Stat. § 28-39-201
Survivors
(a) 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.
(b) However, if the owner leaves one (1) or more children, the child or children shall share with the surviving spouse and be entitled to one-half ( ½ ) the rents and profits till each of them arrives at twenty-one (21) years of age, each child's right to cease at twenty-one (21) years of age, and the shares to go to the younger children and then all to go to the surviving spouse. The surviving spouse or children may reside on the homestead or not.
(c) In case of the death of the surviving spouse, all of the homestead shall be vested in the minor children of the original homestead owner.
(d) Any rights and benefits given by this section shall not vest until the parties have been continuously married to each other for a period in excess of one (1) year.
Arkansas Stat. § 28-39-101
Personal property, etc., allowances.
(a)(1) In addition to their homestead, dower, and curtesy rights, the surviving spouse and minor children of a decedent, or either in the absence of the other, shall be entitled to have assigned to them out of the property owned by the decedent at the time of his or her death, personal property, tangible or intangible, to be selected prior to the sale thereof by the personal representative or after sale out of the proceeds thereof by the surviving spouse, if there is a surviving spouse or, otherwise, by the guardian of the minor children, when the personal property is of the value of four thousand dollars ($4,000) as against distributees or the value of two thousand dollars ($2,000) as against creditors.
(2) The right to such an allowance shall vest in the surviving spouse upon the death of his or her spouse, shall not terminate with his or her subsequent death or remarriage, and shall become his or her absolute property or the property of his or her estate upon death without restriction as to use, encumbrance, or disposition.
(3) If any of the minor children are not children of the surviving spouse, the allowance shall vest in the surviving spouse to the extent of one-half ( ½ ) thereof, and the remainder shall vest in the decedent's minor children in equal shares.
(b) Such furniture, furnishings, appliances, implements, and equipment as shall be reasonably necessary for the family use and occupancy of his or her dwelling shall be assigned to and vested in the surviving spouse, if any, provided he or she was living with the decedent at the time of his or her death.
(c) During a period of two (2) months after the death of the decedent, the surviving spouse and minor children, or either in the absence of the other, shall be entitled to receive from the estate such reasonable amount, not exceeding in the aggregate one thousand dollars ($1,000), as in the judgment of the court may be required for their sustenance, in accordance with the usual living standards of the family.
(d) The provisions of subsections (a)-(c) of this section shall be cumulative, and the provisions of subsections (b) and (c) of this section shall apply as against creditors and distributees.
Arkansas Stat. § 28-39-403
Spouse's time limitation for filing election.
(a) The election by a surviving spouse to take against the will may be made at any time within one (1) month after the expiration of the time limited for the filing of claims.
(b) However, if, at the expiration of the period for making the election, litigation is pending to test the validity or to determine the effect or construction of the will or to determine the existence of issue surviving the deceased or to determine any other matter of law or fact which would affect the amount of the share to be received by the surviving spouse, the right of the surviving spouse to make an election shall not be barred until the expiration of one (1) month after the date of the final order of the circuit court adjudicating the issue in litigation.
Ark. Code Ann. § 28-39-402
Notification of surviving spouse
Within one (1) month after the will of a married person has been admitted to probate, the clerk shall mail a notice to the decedent's surviving spouse at his or her mailing address, if known, in which shall be stated the time within which a written election must be filed by or on behalf of the surviving spouse in order to take against the will.
Ark. Code Ann. § 28-39-404
Election in writing
(a)(1) The election to take against the will shall be:
(A) In writing, signed and acknowledged by the surviving spouse or by the guardian of his or her estate; and
(B) Filed in the office of the probate clerk of the circuit court.
(2) It shall be in substantially the following form:
“I, A. B., surviving wife (or husband) of C. D., deceased, hereby renounce and disclaim any and all benefits under the will of C. D., and elect to take from the estate of C. D. only the property and benefits which (because of this election) will accrue to me under Section 33 of Act No. 140, approved February 23, 1949, as amended.
DATED: .............., 20.....
SIGNED:
”
(ACKNOWLEDGMENT)
(b) The clerk shall record the election in the will records. The personal representative shall, and any interested person may, file for record with the circuit clerk and recorder of each other county in this state in which the decedent, at the time of his or her death, owned an estate of inheritance in real property a duplicate original or certified copy of the election.
