USA – ARKANSAS Law and Practice Contributed by: Aaron Bundy and Danya Bundy, Bundy
be defeated by it, and they are not always defeated by will substitutes either. In In re Estate of Thompson , the Arkansas Supreme Court let a surviving spouse reach revocable trust assets where the transfer worked a fraud on marital rights. Children have no forced share, and a parent may dis - inherit a child deliberately, although a child omitted from a will without evident intention takes an intestate share under the pretermitted child rules of Section 28-39-407, a regular source of litigation in home-draft - ed wills. The consensual alternative is a premarital agreement waiving dower, curtesy, homestead, and elective rights, which Arkansas enforces when the statutory requirements are met. Waivers of marital rights are standard practice in second marriages and blended families, and a spouse who signs one and attacks the plan anyway may forfeit far more than the lawsuit. 2.4 Marital Property Arkansas is a separate property state during the mar - riage, not a community property state. Property fol - lows title while the marriage continues, subject to a significant qualification for real estate. Because dower and curtesy attach to land, one spouse cannot convey clear title to real property without the other spouse joining to release marital rights, so both signatures appear on deeds and mortgages. At divorce, marital property is divided under Section 9-12-315 of the Arkansas Code Annotated, which starts from an equal 50/50 division of all marital prop - erty and requires the court to state its reasons on the record if it divides unequally after weighing the statutory factors. The equal starting point is a gen - uine presumption rather than a talking point, and it anchors settlement negotiations. Gifts, inheritances, premarital property, and the increase in value of each are excluded from the marital estate by statute, and the supreme court enforced that text as written in Moore v Moore , in 2016, overruling three decades of active appreciation case law: growth in nonmarital property stays nonmarital even when a spouse’s own time, effort, and skill produced it. Moore did not leave the non-owning spouse without remedies; rather, it relocated them. A court may still distribute nonmarital property itself when equity requires, provided it recites
its reasons under the statutory factors, including each spouse’s contributions, and alimony operates as a complementary device, reconsidered whenever the property division changes. Classification fights thus became findings fights. A final decree automatically converts tenancies by the entirety and survivorship estates into tenancies in common under Section 9-12- 317 unless the decree provides otherwise. What the decree does not do is fix the rest of the estate plan. Divorce revokes will provision in favour of a former spouse under Section 28-25-109, but no Arkansas statute revokes trust provisions, life insurance ben - eficiary designations, pay-on-death registrations, or beneficiary deeds, and federal law requires an ERISA plan to pay the named former spouse no matter what state law says. The post-decree beneficiary checklist matters as much as the decree itself. Premarital agreements are governed by the Arkan - sas Premarital Agreement Act, Sections 9-11-401 to 9-11-413 of the Arkansas Code Annotated. An agree - ment must be in writing and signed by both parties, and it is enforceable unless the challenging spouse proves involuntariness, or proves that the agree - ment was unconscionable when executed and that the challenger had no fair disclosure, no adequate knowledge of the other’s finances, and no written dis - closure waiver signed after consulting legal counsel. That last clause is Arkansas’s addition to the uniform act. A premarital agreement also cannot waive ERISA plan survivor rights by itself, since federal law accepts only a spouse’s post-wedding consent on the plan’s form, so the agreement should obligate that signa - ture. Postnuptial agreements fall outside the Act, and courts examine them as contracts between confiden - tial parties, so consideration, disclosure, independent counsel, fair terms, and clean execution matter even more after the wedding. 2.5 Transfer of Property Basis consequences follow federal law, and Arkansas imposes no separate basis regime. Lifetime gifts carry the donor’s basis to the donee under Section 1015 of the Internal Revenue Code, along with the donor’s holding period. Assets included in the estate at death take a fair market value basis under Section 1014, erasing built-in gain. Assets given away completely, including to irrevocable grantor trusts excluded from
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