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What Is an Elective Share of Spouse?

 

In the United States, statutory elective share law exists to prevent disinheritance of a spouse. Elective share statutes give to a surviving spouse a fixed fraction, typically out of a probate estate of the deceased spouse. Traditionally that fraction is one-third of the estate regardless of the length of the marriage. The Uniform Probate Code provides a more complicated scheme for determining the elective share. Elective share statutes are enacted in “separate property states.” These are often contrasted with “community property states.”

Arkansas Law Regarding Elective Share of Spouse:

 

28-39-101. Allowances to surviving spouse and minor children.

 

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 (1/2) 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.

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