My Husband did not update his Will after we married. Can I still inherit from him as his wife?

Full question:

I live in Fayetteville, Arkansas. My husband and I had been married for 2 years. My husband recently passed away due to a car accident and had left a will. However, my husband had forgotten to update his will and had left all his money and property to his parents. Can I choose not to follow my husband’s will and divide up his estate in any other legal way?

• Category: Wills and Estates
• Subcategory: Elective Share of Estate
• Date: 04/07/2025
• State: Arkansas

Answer:

Spouses at death, usually leave money and property to their surviving spouse through a formal document call. Further, a will may not be the final word regarding the decedent's estate and in many states, the surviving spouse may choose an alternative called the right of election whereby the surviving spouse can elect to take an amount specified in the state statute instead of receiving the amount specified in the will. In Arkansas, a surviving spouse’s right of election is contained in Arkansas Code § 28-39-401:

(a) When a married person dies testate as to all or any part of his or her estate, the surviving spouse shall have the right to take against the will if the surviving spouse has been married to the decedent continuously for a period in excess of one (1) year.

(b) In the event of such an election, the rights of the surviving spouse in the estate of the deceased spouse shall be limited to the following:

(1) The surviving spouse, if a woman, shall receive dower in the deceased husband's real estate and personal property as if he had died intestate. The dower shall be additional to her homestead rights and statutory allowances; and
(2) The surviving spouse, if a man, shall receive a curtesy interest in the real and personal property of the deceased spouse to the same extent as if she had died intestate. The curtesy interest shall be additional to his homestead rights and statutory allowances; and
(3) If, after the assignment of dower or curtesy, as the case may be, and the payment of all statutory allowances, taxes, and debts, and the satisfaction of all testamentary gifts and devises, there shall remain some residue of the deceased spouse's estate which is not disposed of by will, then, if the deceased spouse shall have been survived by no natural or adopted child, or the descendants of any natural or adopted child, and by no parent, brother, sister, grandparent, uncle, aunt, great-grandparent, great-uncle, great-aunt, or the lineal descendants of any of them, then the surviving spouse will take by inheritance the undisposed residue.

 
In Arkansas, the surviving spouse has the right to an elective share and to take against the decedent’s will if the surviving spouse was married to the decedent continuously for one year prior to the spouse’s death. Further, the share of the surviving spouse is the same they would receive if the decedent dies intestate plus homestead and statutory allowances.
 
Here, you have the right of election and if you choose, you can opt against your husband’s will. In order for you exercise your right of election, you must file the election for the elective share within 1 month after the time period for filing creditor claims. Further, claims against the estate are barred if not filed with the court or verified to the personal representative within six months after the date of the first publication of notice to creditors.