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Arkansas Surviving Spouse Rights in Probate
Support GuideArkansas13 min read

Arkansas Surviving Spouse Rights in Probate

Arkansas surviving spouse rights include dower and curtesy, homestead rights, statutory allowances, the intestate share, and taking against the will.

By Settled Editorial

Arkansas protects a surviving spouse differently from most states. It never adopted the Uniform Probate Code's percentage elective share. Instead, it kept the old common-law rights of dower (for a surviving wife) and curtesy (for a surviving husband), and it layers homestead rights and fixed statutory allowances on top. Those protections run against the will and, in most families, do more work than a will ever could.

This guide explains each of those rights the way Arkansas actually structures them, using the repo's verified statute data. It walks through dower and curtesy, homestead rights, the statutory allowances, the intestate share, the election to take against the will, and the limits that can waive or forfeit these protections. Arkansas hears probate in the Circuit Court (Probate Division) for the county where the person lived, so every step below happens there.

Overview of Spousal Rights

A surviving spouse in Arkansas usually holds several protections at once, and they stack rather than cancel each other out:

  1. Dower or curtesy - a protected share of the deceased spouse's real and personal property
  2. Homestead rights - the right to occupy and take the rents and profits of the family home for life
  3. Statutory allowances - a personal property allowance, a furniture and furnishings set-aside, and a short support allowance
  4. Intestate share - what passes under the table of descents when there is no will
  5. The election to take against the will - the right to claim dower, curtesy, and statutory rights instead of what the will leaves

Two points shape everything that follows. First, the homestead rights and the statutory allowances are in addition to dower or curtesy, not a deduction from them (Ark. Code 28-39-101). Second, two of these rights are keyed to how long the couple was married: homestead rights require more than one year of marriage, and the full intestate share (when there are no descendants) requires three years. Those wrinkles are unusual, and they decide real cases.

Dower and Curtesy

Dower and curtesy are the heart of Arkansas surviving spouse law. Rather than a flat percentage of the whole estate, they give the spouse a fixed fractional interest in the decedent's real and personal property, and the fraction turns on whether the decedent left children.

When the decedent left children (or their descendants). The surviving spouse is endowed of a life estate in one-third of the real property the decedent owned during the marriage (Ark. Code 28-11-301), plus one-third of the personal estate (Ark. Code 28-11-305). A life estate means the right to use the land for life, with the land itself passing to the decedent's descendants afterward.

When the decedent left no children. The share grows. As against collateral heirs (parents, siblings, and more distant kin), the surviving spouse takes one-half of the real estate and one-half of the personal property absolutely (Ark. Code 28-11-307). Two caveats matter. As against creditors, the protected share drops to one-third of the real estate and one-third of the personal property. And the one-half real-estate share is taken in fee simple only for new-acquisition land; ancestral real estate (land the decedent inherited from their own family) is taken as a life estate rather than outright (Ark. Code 28-11-307).

This is the mechanism that replaces a UPC elective share in Arkansas. There is no single "thirty percent of the estate" figure. The spouse's floor is dower or curtesy, sized by the fractions above, and the Arkansas intestate succession guide shows how those fractions interact with the table of descents.

Homestead Rights

Arkansas homestead protection is constitutional and statutory, and it protects the surviving spouse's right to stay in the family home.

What the spouse gets. A surviving spouse with no separate homestead takes the rents and profits of the homestead for life (Ark. Code 28-39-201). Minor children share the homestead rights until age 21, and if the surviving spouse dies, the homestead vests in the minor children. These are occupancy and life-estate rights. They do not, by themselves, transfer fee title to the home.

The one-year marriage requirement. Homestead rights do not vest until the couple has been continuously married to each other for more than one year (Ark. Code 28-39-201(d)). A very short marriage can leave a surviving spouse without homestead rights even though dower or curtesy still applies.

The size limits. The Arkansas Constitution defines the homestead by acreage. A rural homestead may be up to 160 acres (never reduced below 80 acres) and an urban homestead up to 1 acre (never reduced below one-quarter acre), each stated as not exceeding $2,500 in value (Ark. Const. art. 9, secs. 4-5). That $2,500 figure comes from the 1874 Constitution and is not adjusted for inflation, so the acreage limits, not the dollar value, are the meaningful protection today.

Unlike Florida, Arkansas does not impose a rule that the residence can be devised only to the surviving spouse. The home can be left by will, but the spouse's homestead occupancy rights attach regardless of what the will says.

Statutory Allowances

On top of dower, curtesy, and homestead, Arkansas gives the surviving spouse and minor children fixed allowances out of the estate (Ark. Code 28-39-101). These figures are set by statute, are modest, and are not indexed for inflation, so treat them as a protected minimum rather than full support.

Personal property allowance. The surviving spouse and minor children (or either in the absence of the other) may have personal property assigned to them up to $4,000 in value as against distributees, or $2,000 as against creditors (Ark. Code 28-39-101(a)).

Household furniture and furnishings. Furniture, furnishings, appliances, implements, and equipment reasonably necessary for family use and occupancy of the dwelling are assigned to and vest in the surviving spouse if the spouse was living with the decedent at the time of death (Ark. Code 28-39-101(b)). This is a use-based set-aside, not a fixed dollar cap.

Support (sustenance) allowance. During the two-month period after death, the surviving spouse and minor children may receive from the estate a reasonable amount not exceeding $1,000 in the aggregate for their sustenance, measured against the family's usual living standard (Ark. Code 28-39-101(c)).

These allowances are payable from the estate ahead of general creditor claims, subject to the statutory limits and to the expenses of administration. They are determined during administration before the Circuit Court (Probate Division). The Arkansas creditor claims guide explains where allowances fall in the payment order.

Intestate Share

When there is no will, Arkansas runs the estate through the table of descents in Ark. Code 28-9-214, and the surviving spouse's outcome depends on children and on the length of the marriage.

  • Decedent left descendants. The spouse does not take a table-of-descents share. The children and their descendants take the heritable estate, subject to the spouse's dower or curtesy off the top (Ark. Code 28-9-214).
  • No descendants, married three years or more. The surviving spouse takes the entire heritable estate (Ark. Code 28-9-214).
  • No descendants, married less than three years. The surviving spouse takes one-half (50 percent) of the heritable estate, and the other half passes to the decedent's parents, then siblings, and so on (Ark. Code 28-9-214).

So even without a will, a spouse with children relies on dower or curtesy rather than a headline percentage. For the full order of heirs and how representation works, see the Arkansas intestate succession guide.

When the Spouse Can Take Against the Will

Arkansas lets a surviving spouse reject what a will leaves and claim the statutory rights instead. This is the Arkansas version of an election, and it is not a fixed percentage.

Under Ark. Code 28-39-401, a surviving spouse may elect to take against the will, claiming dower or curtesy plus the statutory allowances and homestead rights rather than the will's provisions. In practice you compare two paths: take what the will gives you, or renounce it and fall back on dower or curtesy (sized by the fractions above), the allowances, and homestead rights. The election makes sense when the will leaves the spouse less than those protected rights would.

Because the election, the allowances, dower or curtesy, and homestead rights all interact, analyze them together before deciding. A surviving spouse who is also the personal representative should be especially careful, since the executor duties guide sets out the fiduciary standard that applies to that role.

Waiver and Forfeiture

These rights are strong, but they are not absolute. A surviving spouse can give them up in advance, and certain circumstances cut them off.

Waiver by agreement. A spouse can relinquish dower, curtesy, and statutory rights through a valid written marital agreement, such as a prenuptial or postnuptial agreement. For an agreement to hold up, it generally must be in writing, signed, entered voluntarily, and made with fair financial disclosure. Whether a specific agreement is enforceable is a fact question, so confirm it with a licensed Arkansas attorney.

Built-in duration limits. Two limits act like automatic reductions. Homestead rights do not vest unless the couple was continuously married for more than one year (Ark. Code 28-39-201(d)), and the full no-descendants intestate share requires three years of marriage or it drops to one-half (Ark. Code 28-9-214).

Forfeiture. A final divorce ends the marriage, and with it these spousal rights. A person who unlawfully and intentionally causes the decedent's death may be barred from taking under the general slayer principle. The precise application of the slayer rule is fact-specific, so confirm it with counsel for a particular estate.

Deadlines

Only a few timing rules here are fixed by the statutes the repo confirms. Treat the rest as items to verify with the Circuit Clerk or a licensed Arkansas attorney before you rely on them.

  • Support allowance window. The support (sustenance) allowance covers the two-month period after death (Ark. Code 28-39-101(c)).
  • One-year marriage for homestead. Homestead rights vest only after more than one year of continuous marriage (Ark. Code 28-39-201(d)).
  • Three-year marriage for the full share. The entire heritable estate passes to a spouse with no descendants only if the marriage lasted three years or more; a shorter marriage yields one-half (Ark. Code 28-9-214).
  • Election to take against the will. Ark. Code 28-39-401 gives the right to elect, but the number of days to file the election is set by statute and local court practice. Confirm the current deadline with the Circuit Clerk or an attorney rather than assuming a figure.

Missing a timing rule can shrink or forfeit a protection, so calendar these dates early and raise any election question with the court well before administration closes. The Arkansas probate timeline guide maps how the estate's deadlines fall on the calendar.

Frequently Asked Questions

Can my spouse disinherit me in Arkansas?

Not entirely. Even if a will leaves you out, you keep dower or curtesy, homestead rights, and the statutory allowances, and you can elect to take against the will under Ark. Code 28-39-401. Those protections set a floor a will cannot erase.

What is dower or curtesy in Arkansas?

It is the surviving spouse's protected share of the deceased spouse's property. When the decedent left children, the spouse takes a life estate in one-third of the real property (Ark. Code 28-11-301) and one-third of the personal estate (Ark. Code 28-11-305). When there are no children, the spouse takes one-half of each against collateral heirs, with ancestral land taken as a life estate (Ark. Code 28-11-307).

How does the length of the marriage change what I receive?

Two rights depend on it. Homestead rights vest only after more than one year of continuous marriage (Ark. Code 28-39-201(d)). And when there are no descendants, the full heritable estate passes to the spouse only after three years of marriage; a shorter marriage cuts that share to one-half (Ark. Code 28-9-214).

How much are the Arkansas statutory allowances?

The personal property allowance is up to $4,000 as against distributees, or $2,000 as against creditors (Ark. Code 28-39-101(a)). Household furniture and furnishings reasonably necessary for the dwelling vest in a spouse who lived with the decedent (Ark. Code 28-39-101(b)). The support allowance is up to $1,000 in total for the two months after death (Ark. Code 28-39-101(c)). These are fixed statutory amounts, not adjusted for inflation.

Related Guides

Sources

This guide is general information about Arkansas surviving spouse rights. County practice differs, and dower, curtesy, homestead, and the election involve fact-specific analysis, so confirm anything that affects your situation with the Circuit Clerk, the Circuit Court (Probate Division), or a licensed Arkansas attorney. It is not legal advice.

Information current as of July 1, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Arkansas can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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