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What Is an Elective Share of Spouse?

In the United States, statutory elective share law exists to prevent the disinheritance of a spouse. Elective share statutes give a surviving spouse a fixed fraction, typically out of a probate estate of the deceased spouse. Traditionally, that amount 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.


  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 [their] 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 [their] spouse, shall not terminate with [their] subsequent death or remarriage, and shall become [their] absolute property or the property of [their] estate upon death without restriction as to use, encumbrance, or disposition.
  1. 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.


Such furniture, furnishings, appliances, implements, and equipment, as shall be reasonably necessary for the family use and occupancy of [their] dwelling shall be assigned to and vested in the surviving spouse, if any, provided [they] were living with the decedent at the time of [their] death.


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.


The provisions of subsections (a) through (c) of this section shall be cumulative, and the provisions of subsections (b) and (c) of this section shall apply against creditors and distributees.

If you are going through the estate administration process in White County, Pulaski County, or Saline County, in nearby cities like Benton, Sherwood, and Little Rock, AR, we are familiar with the laws in your area. We are happy to explain the rights of surviving spouses and children.

At McClelland Law Firm, we believe that limiting our practice areas provides the greatest value to our clients. To us, value means providing exceptional service and efficient processes for each of our practice areas.

We are committed to compassionate representations, especially as it relates to elder law. No one should feel pressured, controlled, or “talked down” to in any meeting. Every client deserves to be heard and understood.

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Searcy, Arkansas 72143

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Benton, Arkansas 72019

McClelland Law Firm, P.A. is here to help you and your loved ones understand probate and trust administration, estate planning, Medicaid planning, crisis planning, guardianship, and elder law. Our Benton, Sherwood, and Searcy law offices welcome you to contact us and learn how we can help meet your elder law legal matters in White County, Pulaski County, Saline County, and throughout Arkansas.

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