USA – ARKANSAS Law and Practice Contributed by: Aaron Bundy and Danya Bundy, Bundy
living wills and durable powers of attorney for health - care. An advance directive must be notarised or wit - nessed by two adults, an agent’s authority ordinarily becomes effective upon a determination of incapacity, and directives validly executed in other states are hon - oured. In practice, the funded revocable trust remains the strongest incapacity tool, because a successor trustee assumes management without acceptance friction. 8.4 Elder Law Longevity planning now occupies a permanent place in the practice. Long-term care insurance, including Arkansas Long-Term Care Partnership policies that provide a dollar-for-dollar Medicaid asset disregard, addresses catastrophic care costs, and Medicaid planning around the five-year lookback, often through irrevocable income-only trusts, preserves the farm or the house where insurance was never purchased. Amendment 79 freezes homestead assessed value for owners 65 or older or disabled, and the rising home - stead credit reduces the annual bill, both of which help clients age in place. Protecting elders from financial exploitation is the growth area. Adult maltreatment laws criminalise exploitation, and adult protective services investigates reports. Financial institutions increasingly flag suspi - cious activity. Structure outperforms remedy. Funded revocable trusts with corporate co-trustee or trust protector oversight, transaction monitoring, spending guardrails, and early introduction of successor fidu - ciaries to the family’s advisors catch problems while they are small. 9. Planning for Non-Traditional Families 9.1 Children Adopted children inherit from and through their adop - tive parents on equal terms with biological children, and the adoption decree severs inheritance ties to the biological family, with the customary exception for adoption by the spouse of a biological parent. Chil - dren born outside marriage inherit from the mother in all events. Inheriting from the father requires that paternity be established by one of the statutory meth - ods in Section 28-9-209 of the Arkansas Code Anno -
tated, which run from adjudication through written acknowledgment to a consented birth certificate list - ing, and the claim must be asserted within 180 days of the father’s death, a short and unforgiving window that makes deliberate planning essential for nonmari - tal children. A posthumous descendant conceived before the decedent’s death and born afterward inherits as if born in the decedent’s lifetime under Section 28-9- 210 of the Arkansas Code Annotated. Children con - ceived after death through assisted reproduction are a different matter. The Arkansas Supreme Court held in Finley v Astrue that a child created by in vitro fer - tilisation after the father’s death was not conceived before his death for intestacy purposes, so posthu - mously conceived children do not take by intestacy, and any inclusion must come from deliberate drafting that defines descendants, speaks to stored genetic material, sets time limits, and controls when the class closes. Arkansas has recognised surrogacy by statute for decades. Under Section 9-10-201 of the Arkansas Code Annotated, a child born to a surrogate is the child of the intended parents in the circumstances the statute describes, with a substituted birth certificate issued on court order, a rare degree of statutory clarity that has made the state a friendly venue for surrogate births. Class gift language should still define issue and descendants expressly wherever assisted reproduc - Same-sex marriage has been recognised since Obergefell v Hodges in 2015, and married same-sex couples receive identical treatment for every purpose, including dower and curtesy, the election against the will, intestate shares, joint income tax filing, the fed - eral marital deduction, and portability. Arkansas also produced the leading follow-on decision. In Pavan v Smith , the US Supreme Court required the state to list both same-sex spouses on a child’s birth certificate on the same terms as opposite-sex spouses, confirm - ing that the constellation of marital benefits attaches equally. When planning for married same-sex couples, the area deserving extra care is parentage. Where only one spouse is genetically related to a child, a confirm - tion is in the family picture. 9.2 Same-Sex Marriage
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