Probate Family Allowance Requirements in Arkansas

At a glance

Requirements one by one

Governing law and allowance type

Ark. Code Ann. §§ 28-39-101, 28-39-102, 28-39-103, 28-39-104, and 28-39-105 create several related benefits rather than one interchangeable cash award. Section 28-39-101 combines assigned personal property, necessary household goods, and capped sustenance. Sections Ark. Code Ann. §§ 28-39-102, 28-39-103, and 28-39-104 add spouse-only residence, sustenance, and rent rights tied to dower or curtesy assignment. Section 28-39-105 supplies a separate advancement route for a minor distributee.

Eligible claimants

The core § 28-39-101 benefits cover the surviving spouse and the decedent's minor children, or either class if the other is absent. The spouse alone receives the household-goods benefit and must have been living with the decedent at death. If any minor child is not the surviving spouse's child, one-half of the personal-property allowance vests in the spouse and the other half is divided equally among the decedent's minor children.

The housing and rent rights in §§ 28-39-102, 28-39-103, and 28-39-104 are spouse-only. The § 28-39-105 advancement is paid to the guardian of a qualifying minor distributee, not directly to the minor.

Amount, property, and duration

Section 28-39-101(a) assigns tangible or intangible personal property worth up to $4,000 when measured against distributees, but protects only $2,000 when measured against creditors. These are two limits on the same property allowance, not two amounts to add together. The spouse may also receive the reasonably necessary furniture, furnishings, appliances, implements, and equipment used in the dwelling.

Section 28-39-101(c) authorizes reasonable sustenance matching the family's usual living standard for the two months after death, capped at $1,000 in the aggregate. Section 28-39-102 separately promises the spouse reasonable estate sustenance while the spouse may live rent-free in the chief residence for those two months; that section states no dollar cap. The minor-distributee advancement under § 28-39-105 is likewise a reasonable amount rather than a fixed sum.

Domicile, estate, and dependency scope

The five surveyed allowance sections state no express Arkansas-domicile condition. The personal-property award comes from property owned by the decedent at death, and the support benefits come from the estate. Household goods require cohabitation at death. A § 28-39-105 advancement requires findings that the estate is evidently solvent and the minor distributee's share is sufficient to fund the payment.

Automatic right or petition

Section 28-39-101 uses entitlement language, and the spouse's personal-property right vests at death. The spouse selects property before the personal representative sells it or selects from sale proceeds; if no spouse survives, the minor children's guardian selects. The court still determines the reasonable sustenance amount under § 28-39-101(c).

Ark. Code Ann. § 28-39-104 requires court action for the spouse's proportional rent payments until dower or curtesy is apportioned. Section 28-39-105 permits a reasonable minor advancement after the court makes the solvency and share-sufficiency findings.

Deadline and termination

The surveyed sections state no special deadline to request or select an allowance. Their substantive clocks still matter. Section 28-39-101(c) covers the two months after death, and § 28-39-102 gives the spouse two months of rent-free residence. If dower or curtesy has not then been assigned, § 28-39-103 extends possession of the chief residence and attached land until assignment.

The spouse's § 28-39-101(a) property right does not terminate upon the spouse's later death or remarriage. It becomes the spouse's absolute property or, after death, property of the spouse's estate.

Notice, hearing, and proof

The five surveyed allowance sections prescribe no special petition contents, verification, notarization, or mandatory notice for these benefits. Under Ark. Code Ann. § 28-1-112(a), notice to interested persons is required only when the Probate Code specifically provides for it or the court orders it; the court may require notice in a particular case even when the Code does not.

The allowance provisions do state the operative proof standards. The court judges sustenance by the family's usual living standard. A minor advancement requires findings of evident estate solvency, a sufficient distributive share, and a reasonable maintenance, care, or education amount.

Priority, payment, and insolvency

Under Ark. Code Ann. § 28-49-101(a), the personal representative's possession of personal property remains subject to the statutory allowances. Section 28-39-101 permits selection before sale or from sale proceeds. Its household- goods and $1,000 sustenance layers apply against both creditors and distributees; the separate personal-property allowance is protected up to $2,000 against creditors and $4,000 against distributees.

Ark. Code Ann. § 28-53-107(a) makes distributive shares abate for family allowances in the statutory sequence: intestate property, residuary devises, other nonspecific devises, then specific devises, subject to the statute's testamentary-plan exception. A § 28-39-105 advancement is unavailable unless the estate is evidently solvent.

Inheritance effect and waiver

Section 28-39-101 makes its benefits additional to homestead, dower, and curtesy rights. Section 28-39-105 takes the opposite approach for its separate minor advancement: the personal representative charges each payment against the minor distributee's share. The five surveyed allowance sections state no allowance-specific waiver method.

What trips people up

• The two property figures are opponent-based limits. The $4,000 figure applies against distributees; creditors reduce the protected figure to $2,000.
• The Section 101 benefits accumulate. Personal property, qualifying household goods, and the capped $1,000 sustenance benefit are cumulative.
• The spouse has a separate housing layer. Sections 28-39-102 through 28-39-104 can preserve rent-free possession and proportional rents beyond the initial cash and property benefits.

Common questions

Who selects the personal property?

The surviving spouse selects it before the personal representative's sale or from the sale proceeds. If there is no surviving spouse, the guardian of the minor children selects it.

Can the spouse remain in the residence after two months?

Yes, if dower or curtesy has not been assigned. Section 28-39-103 continues rent-free possession of the chief residence and attached land until assignment.

Can the court fund a minor's education during administration?

Section 28-39-105 permits a reasonable payment to the minor distributee's guardian for maintenance, care, or education, but only if the estate is evidently solvent and the minor's share is sufficient. The payment is charged against that share.

Statutes and sources

• Ark. Code Ann. § 28-39-101 — current compiled personal-property, household-goods, and two-month sustenance allowances (accessed August 16, 2026).
• 2003 Ark. Acts 177 — official enrolled act establishing the current dollar figures (accessed August 16, 2026).
• Ark. Code Ann. §§ 28-39-102 to -105 — spouse residence, sustenance, rent, and minor-advancement provisions (accessed August 16, 2026).
• Ark. Code Ann. § 28-1-112(a) — general probate notice rule (accessed August 16, 2026).
• Ark. Code Ann. §§ 28-49-101(a), 28-53-107(a) — personal-representative possession and abatement rules (accessed August 16, 2026).