What the rule says
Arkansas's elective share framework is distinctive nationally because it offers the surviving spouse a CHOICE between two different protections. Under Ark. Code § 28-39-401 and related statutes, a surviving spouse can elect:
Option 1: Dower or curtesy
The traditional common-law spousal protection retained in modern form:
- One-third of the real property for life (life estate, not fee simple), if descendants survive - One-third of the personal property absolutely (in fee simple), if descendants survive - One-half of real and personal property absolutely if no descendants survive
Option 2: Statutory elective share
An alternative framework providing fee-simple share:
- One-third of the augmented estate in fee simple (with descendants), or larger share without descendants - The augmented estate concept includes some non-probate transfers
The election
The surviving spouse can choose whichever option produces the larger inheritance based on the specific estate's composition. The election:
- Must be filed within specific time limits after probate begins (typically 1 month from probate, with extensions) - Operates in lieu of will provisions if elected - Is irrevocable once made (with limited exceptions)
Why the election framework is distinctive
Most states use a single elective share framework:
- Augmented estate states (NY, FL, NC, VA, MA, etc.): Spouse takes a fixed or marriage-length percentage of the augmented estate. - Community property states: Spouse already owns half of community property; elective share addresses separate property differently. - Pure dower states (KY): Spouse takes dower in real property only.
Arkansas combines retained dower (similar to Kentucky) with a separate statutory elective share — and lets the surviving spouse choose between them. The choice depends on the specific estate composition:
- When real property is the dominant asset: Dower provides better protection through the life estate plus fee-simple personal property. - When personal property is dominant: Statutory elective share may provide larger fee-simple share. - When both are substantial: Calculation determines which produces the larger inheritance.
What this means in practice
The election framework produces specific outcomes:
- Arkansas decedent's estate: $300,000 real property + $200,000 personal property. Will gives $50,000 to spouse, rest to children. - Dower: Life estate in $100,000 real + $66,667 personal = approximately $166,667 economic value (depending on actuarial calculations of life estate) - Elective share: $166,667 in fee simple - Election depends on specific calculation; spouse will choose larger value.
- Arkansas decedent's estate: $100,000 real property + $400,000 personal property. Will gives $50,000 to spouse, rest to children. - Dower: Life estate in $33,333 real + $133,333 personal = limited real property life estate plus substantial personal - Elective share: $166,667 in fee simple - Election may favor elective share given personal property dominance.
Procedural requirements
The election must be made within specific deadlines:
- 1 month from probate (with extensions available) - Filed with the probate court - Specific procedural requirements for valid election
Failure to elect within deadline forfeits the right.
Waiver
The spousal protections can be waived through a properly executed agreement, typically a premarital or postmarital agreement.
What you can do about it
For a surviving Arkansas spouse:
1. Calculate both options. Compare dower with statutory elective share based on the estate's specific composition. 2. Elect the more advantageous option within deadline. 3. Engage an Arkansas probate attorney.
For estate planners advising Arkansas clients:
- Account for the election framework in drafting wills. A plan that disinherits the surviving spouse will face whichever election produces the larger claim. - Use waivers in second marriages through premarital agreements. - Coordinate dower and elective share in overall planning.
Who this affects most
Arkansas's elective share / dower election is most consequential for:
- Surviving spouses with sophisticated estates where the choice matters - Arkansas residents with significant real property (dower may favor) - Estate planners advising on Arkansas-specific elective share considerations - Out-of-state advisors whose clients have moved to Arkansas
Arkansas's framework is genuinely distinctive — combining retained dower with an elective share alternative produces a spouse-choice framework not found elsewhere. Effective Arkansas estate planning must account for both options.