Article on Arkansas’s Approach to the Elective Share

Maria Korzendorfer recently published a Case Note entitled, In re Estate of Thompson: The Shortcomings of the Arkansas Elective Share Statute, 68 Ark. L. Rev. 1089 (2016). Provided below is a summary of the Case Note:

The majority opinion in Thompson illustrates the extent to which the Arkansas Supreme Court will go to protect the inheritance rights of a surviving spouse. While an equitable result was achieved in Thompson, the use of extensive and costly litigation to show an intentional circumvention of spousal rights is both infeasible for many surviving spouses and judicially inefficient. In light of Thompson, and because of the potential misapplication of the intent-to-defraud test — combined with the apparent disconnect between the state’s elective share statute, equitable distribution statute, and Premarital Agreement Act — the time is ripe for Arkansas to adopt the Uniform Probate Code’s (UPC) augmented estate approach for calculating the elective share. Such reform would reduce litigation and increase predictability, two of the most important goals of estate planning. Further, it would better comport with existing law, promote Arkansas’s public policy favoring spousal protection, and ensure against windfalls for surviving spouses.

This note addresses the problems inherent in Arkansas’s approach to the elective share and recommends statutory intervention in the wake of Thompson. Part II details pertinent Arkansas caselaw, the facts of Thompson, and explains why the court reached its holding and how this is consistent with Arkansas law. Part III analyzes both Arkansas’s method of calculating the elective share and the UPC’s augmented estate approach. Part IV compares the two elective share methods, illustrates the disconnect between Arkansas’s elective share and other areas of state law, and shows the timeliness of Arkansas adopting the augmented estate approach to provide predictability in estate planning while remaining consistent with long-standing Arkansas public policy.