A surviving spouse in Arkansas is entitled to several overlapping protections: the right to remain in the marital home for two months rent-free, dower or curtesy in the deceased’s real and personal property, a statutory personal-property allowance, and either an elective share against the will or a share under intestate succession. The size of each entitlement turns on whether the deceased left children and, in some cases, how long the marriage lasted. Understanding surviving spouse rights in Arkansas matters most in the first weeks after a death, because one of the key deadlines is short and cannot be extended after it passes.
Staying in the Home After the Death
For two months after a spouse dies, the surviving spouse can live in the deceased’s primary residence rent-free, whether or not dower or curtesy has been assigned yet. During that same two-month period, the estate must provide “reasonable sustenance,” meaning the surviving spouse can draw on estate resources for basic living needs like food and utilities.1Justia. Arkansas Code 28-39-102 – Right of Surviving Spouse to Live in House for Two Months – Sustenance
This right sits on its own. It does not reduce dower, curtesy, or any inheritance share the surviving spouse is otherwise entitled to.
Dower and Curtesy: The Main Property Share
Dower (for a surviving wife) and curtesy (for a surviving husband) give the surviving spouse a guaranteed interest in the deceased spouse’s real estate and personal property. Arkansas law treats them the same in scope, even though the statutes keep the older terminology. Dower and curtesy cannot be defeated by a will unless the surviving spouse voluntarily gave them up in a valid prenuptial or postnuptial agreement.
If the Deceased Had Children
When the deceased is survived by at least one child or descendant of a child, the surviving spouse takes a life estate in one-third of all real property the deceased owned during the marriage.2Justia. Arkansas Code 28-11-301 – Land Generally A life estate lets the surviving spouse use and benefit from that property for life, but not sell it outright, because the underlying ownership passes to the heirs. The surviving spouse also receives an absolute one-third share of the deceased’s personal property.
If the Deceased Had No Children
With no surviving children or descendants, the share grows significantly. The surviving spouse takes one-half of all real property in fee simple, meaning full and permanent ownership.3Justia. Arkansas Code 28-11-307 – Dower or Curtesy When No Children The personal-property share also rises to an absolute one-half.
Statutory Personal-Property Allowance
On top of dower or curtesy, the surviving spouse can claim personal property (tangible or intangible) worth up to $4,000 when the claim is against other beneficiaries, or up to $2,000 when claimed against the estate’s creditors.4Justia. Arkansas Code 28-39-101 – Allowances to Surviving Spouse and Minor Children
The right vests at the moment of death and is not lost if the surviving spouse remarries. Whatever property the spouse selects becomes absolutely theirs, with no restriction on use, sale, or transfer.4Justia. Arkansas Code 28-39-101 – Allowances to Surviving Spouse and Minor Children The dollar figures are modest, but the allowance stacks on top of every other spousal right.
Electing Against the Will
If the will leaves the surviving spouse little or nothing, Arkansas law provides an override. A surviving spouse who was continuously married to the deceased for more than one year can elect to take against the will, essentially claiming dower or curtesy plus homestead rights and statutory allowances as though the deceased had died without a will.5Justia Law. Arkansas Code 28-39-401 – Rights of Surviving Spouse – Limitations
The one-year requirement is strict and continuous. If the marriage lasted one year or less, the elective share is unavailable. Couples who separated and reconciled may face questions about whether the marriage was truly continuous.
What the Elective Share Covers
When electing against the will, the surviving spouse takes dower or curtesy at the fractions described above, plus homestead rights and statutory allowances.5Justia Law. Arkansas Code 28-39-401 – Rights of Surviving Spouse – Limitations If anything is left in the estate after dower or curtesy, taxes, debts, statutory allowances, and testamentary gifts are all satisfied, and the deceased left no surviving children or descendants, the surviving spouse may also receive that remainder.
Deadline for the Election
The window is short. After the will is admitted to probate, the probate clerk sends written notice to the surviving spouse of the right to elect. The spouse then has until one month after the deadline for filing claims against the estate to make the election in writing.6Arkansas Judiciary. Arkansas Probate Benchbook If litigation that could affect the surviving spouse’s share is pending (such as a challenge to the will’s validity), the deadline extends to one month after the court resolves that dispute.
Miss this deadline and the right to take against the will is gone. There is no do-over.
If There Is No Will: Intestate Succession
When a spouse dies without a will, Arkansas intestate succession law controls the “heritable estate,” meaning what remains after dower or curtesy is set aside. The surviving spouse’s share depends on whether the deceased left descendants and how long the marriage lasted.
The Deceased Left Children or Grandchildren
If the deceased left descendants, the heritable estate passes entirely to those descendants.7Justia. Arkansas Code 28-9-214 – Tables of Descents The surviving spouse still gets dower or curtesy and the statutory allowance, but does not automatically inherit everything. This surprises many people.
No Descendants
If there are no children or grandchildren and the couple was continuously married for at least three years, the surviving spouse inherits the entire heritable estate.7Justia. Arkansas Code 28-9-214 – Tables of Descents Combined with dower or curtesy, that effectively means everything.
If the marriage lasted less than three years and there are no descendants, the surviving spouse takes only 50% of the heritable estate.7Justia. Arkansas Code 28-9-214 – Tables of Descents The other half passes to the deceased’s surviving parents, split equally if both are living or entirely to one if only one survives. The three-year threshold is easy to overlook, particularly in second marriages later in life.
Federal Tax Points Worth Knowing
Arkansas law decides what property the surviving spouse receives, but two federal tax items are worth attention.
Estate Tax Portability
For deaths in 2026, estates below $15,000,000 owe no federal estate tax.8Internal Revenue Service. What’s New – Estate and Gift Tax Most Arkansas estates fall well under that figure. If the deceased did not use all of the $15 million exemption, the surviving spouse can claim the unused portion (the Deceased Spousal Unused Exclusion, or DSUE) by having the executor file IRS Form 706 within nine months of the death, with a possible six-month extension. If no one files, the unused exemption disappears. For estates that would not otherwise need to file, a special IRS procedure allows a late filing within five years of the death, but prompt filing is safer.9Internal Revenue Service. Instructions for Form 706
The Final Joint Return
The IRS treats a surviving spouse as married for the full year in which the death occurred, provided the survivor does not remarry before year-end. A joint return for that year usually produces a lower tax bill than filing separately. The surviving spouse signs the return and writes “filing as surviving spouse” in the signature area, and no special claim form is required to receive a refund on a joint return.10Internal Revenue Service. Filing a Final Federal Tax Return for Someone Who Has Died
Because the elective-share deadline and the estate-tax portability filing both run on tight clocks, speaking with an Arkansas probate attorney soon after the death is one of the more consequential steps a surviving spouse can take.