Updated September 5, 2026. Quick answer: Arkansas’s elective share is not the one-third-of-everything, marriage-length figure most national pages describe. if married more than 1 year: dower/curtesy as if intestate; with no surviving children, 1/2 of real estate in fee simple and 1/2 of personal estate against collateral heirs, but only 1/3 against creditors’ claims
What Arkansas actually sets out
| What the statute sets out | What it says |
|---|---|
| Ark. Code Sec. 28-39-401 (right to take against the will | “the surviving spouse has been married to the decedent continuously for a period in excess of one (1) year” |
| The share and what it is measured against | if married more than 1 year: dower/curtesy as if intestate; with no surviving children, 1/2 of real estate in fee simple and 1/2 of personal estate against collateral heirs, but only 1/3 against creditors’ claims; measured against the decedent’s real and personal estate as if intestate. |
| Regime type | traditional dower/curtesy, not a modern elective share |
| Can it be waived | general Uniform Premarital Agreement Act waiver mechanism referenced in secondary sources, not independently confirmed against Chapter 39 itself |
| Time limit to file | per secondary synthesis of Sec. 28-39-402/403: within 1 month after the creditor-claims period expires (generally 6 months after first publication of notice to creditors) |
How it works in practice
- The share is measured against the decedent’s real and personal estate as if intestate.
- Partially. This state’s formula is limited to the property described above, which does not reach a properly funded revocable trust the same way an augmented-estate state’s formula does, so trust planning can change the outcome here specifically, though it does not change the analysis in a state with an augmented-estate formula.
- Waiver: General Uniform Premarital Agreement Act waiver mechanism referenced in secondary sources, not independently confirmed against Chapter 39 itself.
- The election has to be affirmatively filed on a deadline: per secondary synthesis of Sec. 28-39-402/403: within 1 month after the creditor-claims period expires (generally 6 months after first publication of notice to creditors).
The national picture, including the Uniform Probate Code sliding-scale schedule that a minority of states actually use, is on the elective share calculator page; this page is the record for Arkansas specifically, and its own numbers above should be used instead of the calculator’s national default for a Arkansas estate. The one thing that reliably defeats an elective share in every state that has one is explained on whether a prenup can waive the elective share. A newly widowed reader working through the fuller list of irreversible decisions, of which this is one, can start from the surviving spouse checklist.
What this page does not settle
- This session confirmed the core figure above against a primary or verbatim-mirror source, with one open point: Time-limit and waiver sourced via search synthesis; Justia’s copy of Sec. 28-39-403 returned 403.
- A state can amend or repeal this section without the page around it changing, and a detail specific to a reader’s own situation, such as a pending divorce, a premarital agreement, or property held jointly with right of survivorship, can change which part of the statute actually applies.
- Whether a revocable trust changes the outcome in Arkansas is explained above; that answer is specific to this state and does not generalize to any other one.
- Every quotation here was read against the source on September 5, 2026. Nothing on this page is legal advice, and the exact dollar or percentage amount a court awards depends on facts this page cannot know.
Whether this statute reaches a given family’s actual facts is decided by a court, not by this page. Nothing here is legal advice, and no one should sign a waiver or forgo an election on the strength of a web page.
Sources
The sources above were retrieved and read against the state text on September 5, 2026. Every quotation on this page was checked against those bytes.