In Arkansas, a surviving spouse who meets the legal requirements may choose to take against the will instead of accepting what the will leaves behind. That right depends on Arkansas probate law, the length of the marriage and the timing of the election.
What it means to take against a will in Arkansas
Arkansas law generally allows a surviving spouse to make this election if the marriage lasted continuously for more than one year, subject to statutory limits. The spouse does not automatically receive the entire estate or everything acquired during the marriage. Instead, the election allows the spouse to reject the will’s terms and claim the share Arkansas law protects. General background on a surviving spouse’s right to reject a will and claim a protected share can help explain the concept, but the result in Arkansas depends on the probate record and the property involved.
Timing and procedure can affect the claim
A surviving spouse does not preserve this right by raising concerns informally during probate. Arkansas requires a written election that the spouse or a guardian signs, acknowledges and files with the probate clerk of the circuit court. Key timing and filing issues may include:
- Whether the probate case has been opened and when it was filed
- Whether the probate clerk sent proper notice and what the stated deadline is
- Whether the election was filed on time
- Whether all estate property has been properly identified and included
- Whether other disputes affect the available share
Because the election is subject to a statutory filing deadline, a late or improperly filed election may prevent the spouse from exercising the right.
What a surviving spouse should do first
A surviving spouse considering an election should review the probate record, the will and the applicable filing deadline as soon as possible. Settling an estate may involve more than routine distribution when a surviving spouse chooses to assert this right. Because an untimely or improperly filed election may prevent the spouse from exercising it, early review of the probate case is important.
