Stricken language would be deleted from and underlined language would be added to present law.
*LHR009* 03-15-2023 10:00:50 LHR009
State of Arkansas As Engrossed: H3/15/23 1
94th General Assembly A Bill 2
Regular Session, 2023 HOUSE BILL 1409 3
4
By: Representative M. Brown 5
By: Senator C. Tucker 6
7
For An Act To Be Entitled 8
AN ACT TO ADOPT THE UNIFORM COMMUNITY PR OPERTY 9
DISPOSITION AT DEATH ACT; TO REPEAL THE C URRENT LAW 10
CONCERNING THE DISPO SITION OF COMMUNITY PROPERTY AT 11
DEATH; AND FOR OTHER PURPOSES. 12
13
14
Subtitle 15
TO ADOPT THE UNIFORM COMMUNITY PROPERTY 16
DISPOSITION AT DEATH ACT. 17
18
19
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 20
21
SECTION 1. Arkansas Code Title 28 is amended to add an additional 22
chapter to read as follows: 23
28-15-101. Title. 24
This chapter may be cited as the Uniform Community Property Disposition 25
at Death Act. 26
27
28-15-102. Definitions. 28
In this chapter: 29
(1) "Community-property spouse" means an individual in a marriage or 30
other relationship: 31
(A) under which community property could be ac quired during the 32
existence of the relationship; and 33
(B) that remains in existence at the time of death of either 34
party to the relationship. 35
(2) "Electronic" means relating to technology having electrical, 36 As Engrossed: H3/15/23 HB1409
2 03-15-2023 10:00:50 LHR009
digital, magnetic, wireless, optical, electroma gnetic, or similar 1
capabilities. 2
(3) "Jurisdiction" means the United States, a state, a foreign county, 3
or a political subdivision of a foreign country. 4
(4) "Partition" means voluntarily divide property to which this chapter 5
otherwise would apply. 6
(5) "Person" means an individual, estate, business or nonprofit entity, 7
public corporation, government or governmental subdivision, agency, or 8
instrumentality, or other legal entity. 9
(6) "Personal representative" includes an executor, administrator, 10
successor personal representative, special administrator, and other person 11
that performs substantially the same function. 12
(7) "Property" means anything that may be the subject of ownership, 13
whether real or personal, tangible or intangible, legal or equitable, or an y 14
interest therein. 15
(8) "Reclassify" means change the characterization or treatment of 16
community property to property owned separately by community -property 17
spouses. 18
(9) "Record" means information: 19
(A) inscribed on a tangible medium; or 20
(B) stored in an electronic or other medium and retrievable in 21
perceivable form. 22
(10) "Sign" means, with present intent to authenticate or adopt a 23
record: 24
(A) execute or adopt a tangible symbol; or 25
(B) attach to or logically associate with the record an 26
electronic symbol, sound, or process. 27
(11) "State" means a state of the United States, the District of 28
Columbia, Puerto Rico, the United States Virgin Islands, or any other 29
territory or possession subject to the jurisdiction of the United States. The 30
term includes a federally recognized Indian tribe. 31
32
28-15-103. Included and excluded property. 33
(a) Subject to subsection (b), this chapter applies to the following 34
property of a community -property spouse, without regard to how the property 35
is titled or held: 36 As Engrossed: H3/15/23 HB1409
3 03-15-2023 10:00:50 LHR009
(1) if a decedent was domiciled in this state at the time of 1
death: 2
(A) all or a proportionate part of each item of personal 3
property, wherever located, that was community property under the law of the 4
jurisdiction where the decedent or the surviving community -property spouse 5
was domiciled when the property: 6
(i) was acquired; or 7
(ii) after acquisition, became community property; 8
(B) income, rent, profit, appreciation, or other increase 9
derived from or traceable to property described in subparagraph ( A); and 10
(C) personal property traceable to property described in 11
subparagraph (A) or (B); and 12
(2) regardless whether a decedent was domiciled in this state at 13
the time of death: 14
(A) all or a proportionate part of each item of real 15
property located in this state traceable to community property or acquired 16
with community property under the law of the jurisdiction where the decedent 17
or the surviving community -property spouse was domiciled when the property: 18
(i) was acquired; or 19
(ii) after acquisition, became community property; 20
and 21
(B) income, rent, profit, appreciation, or other increase, 22
derived from or traceable to property described in subparagraph (A). 23
(b) If community-property spouses acquired community property by 24
complying with the l aw of a jurisdiction that allows for creation of 25
community property by transfer of property to a trust, this chapter applies 26
to the property only to the extent the property is held in the trust or 27
characterized as community property by the terms of the tru st or the law of 28
the jurisdiction under which the trust was created. 29
(c) This chapter does not apply to property that: 30
(1) community-property spouses have partitioned or reclassified; 31
or 32
(2) is the subject of a waiver of rights granted by this chapter. 33
34
28-15-104. Form of partition, reclassification, or waiver. 35
(a) Community-property spouses domiciled in this state may partition or 36 As Engrossed: H3/15/23 HB1409
4 03-15-2023 10:00:50 LHR009
reclassify property to which this chapter otherwise would apply. The 1
partition or reclassification must be in a r ecord signed by both community -2
property spouses. 3
(b) A community-property spouse domiciled in this state may waive a 4
right granted by this chapter only by complying with the law of this state, 5
including this state's choice -of-law rules, applicable to waiv er of a spousal 6
property right. 7
8
28-15-105. Community property presumption. 9
All property acquired by a community -property spouse when domiciled in 10
a jurisdiction where community property then could be acquired by the 11
community-property spouse by operatio n of law is presumed to be community 12
property. This presumption may be rebutted by a preponderance of the 13
evidence. 14
15
28-15-106. Disposition of property at death. 16
(a) One-half of the property to which this chapter applies belongs to 17
the surviving community-property spouse of a decedent and is not subject to 18
disposition by the decedent at death. 19
(b) One-half of the property to which this chapter applies belongs to 20
the decedent and is subject to disposition by the decedent at death. 21
(c) The property that belongs to the decedent under subsection (b) is 22
not subject to the elective -share right of the surviving community -property 23
spouse. 24
(d) Except for the purpose of calculating the augmented estate of the 25
decedent and the elective -share right of the s urviving community-property 26
spouse, this section does not apply to property transferred by right of 27
survivorship or under a revocable trust or other nonprobate transfer. 28
(e) This section does not limit the right of a surviving community -29
property spouse to allowances under § 28 -39-101 et seq., § 28-39-201 et seq., 30
§ 28-39-301 et seq., and § 28 -39-401 et seq. 31
(f) If at death a decedent purports to transfer to a third person 32
property that, under this section, belongs to the surviving community -33
property spouse and transfers other property to the surviving community -34
property spouse, this section does not limit the authority of the court under 35
other law of this state to require that the community -property spouse elect 36 As Engrossed: H3/15/23 HB1409
5 03-15-2023 10:00:50 LHR009
between retaining the property transferred t o the community-property spouse 1
or asserting rights under this chapter. 2
3
28-15-107. Other remedies available at death. 4
(a) At the death of a community -property spouse, the surviving 5
community-property spouse or a personal representative, heir, or nonprob ate 6
transferee of the decedent may assert a right based on an act of: 7
(1) the surviving community -property spouse or decedent during 8
the marriage or other relationship under which community property then could 9
be acquired; or 10
(2) the decedent that take s effect at the death of the decedent. 11
(b) In determining a right under subsection (a) and corresponding 12
remedy, the court: 13
(1) shall apply equitable principles; and 14
(2) may consider the community property law of the jurisdiction 15
where the decedent or surviving community-property spouse was domiciled when 16
property was acquired or enhanced. 17
18
28-15-108. Right of surviving community -property spouse. 19
(a) The surviving community -property spouse of the decedent may assert 20
a claim for relief with respect to a right under this chapter in accordance 21
with the following rules: 22
(1) In an action asserting a right in or to property, the 23
surviving community-property spouse must: 24
(A) not later than three years after the death of the 25
decedent, commence an action against an heir, devisee, or nonprobate 26
transferee of the decedent that is in possession of the property; or 27
(B) not later than six months after appointment of the 28
personal representative of the decedent, send a demand in a record to the 29
personal representative. 30
(2) In an action other than an action under paragraph (1), the 31
surviving community-property spouse must: 32
(A) not later than six months after appointment of the 33
personal representative of the decedent, send a demand in a record to the 34
personal representative; or 35
(B) if a personal representative is not appointed, commence 36 As Engrossed: H3/15/23 HB1409
6 03-15-2023 10:00:50 LHR009
the action not later than three years after the death of the decedent. 1
(b) Unless a timely demand is made under subsection (a)(1)(B) or 2
(2)(A), the personal representative may distribute the assets of the 3
decedent's estate without personal liability for a community -property 4
spouse's claim under this chapter. 5
6
28-15-109. Right of heir, devisee, or nonprobate transferee. 7
An heir, devisee, or nonprobate transferee of a deceased community-8
property spouse may assert a claim for relief with respect to a right under 9
this chapter in accordance with the following rules: 10
(1) In an action asserting a right in or to property, the heir, 11
devisee, or nonprobate transferee must: 12
(A) not later than three years after the death of the 13
decedent, commence an action against the surviving community -property spouse 14
of the decedent who is in possession of the property; or 15
(B) not later than six months after appointment of the 16
personal representative of the decedent, send a demand in a record to the 17
personal representative. 18
(2) In an action other than an action under paragraph (1), the 19
heir, devisee, or nonprobate transferee must: 20
(A) not later than six months after the appointment of the 21
personal representative of the decedent, send a demand in a record to the 22
personal representative; or 23
(B) if a personal representative is not appointed, commence 24
the action not later than three years after the death of the decedent. 25
26
28-15-110. Protection of third person. 27
(a) With respect to property to which this chapter applies, a person is 28
not liable under this chapter to the extent the person: 29
(1) transacts in good faith and for value: 30
(A) with community-property spouse; or 31
(B) after the death of the decedent, with a surviving 32
community-property spouse, personal representative, heir, devisee, or 33
nonprobate transferee of the decedent; and 34
(2) does not know or have reason to know that the other party to 35
the transaction is exceeding or improperly exercising the party's authority. 36 As Engrossed: H3/15/23 HB1409
7 03-15-2023 10:00:50 LHR009
(b) Good faith under subsection (a)(1) does not require the person to 1
inquire into the extent or propriety of the exercise of authority by the 2
other party to the transaction. 3
4
28-15-111. Principles of law and equity. 5
The principles of law and equity supplement this chapter except to the 6
extent inconsistent with this chapter. 7
8
28-15-112. Uniformity of application and construction. 9
In applying and construing this chapter, a court shall consider the 10
promotion of uniformity of the law among jurisdictions that enact it. 11
12
28-15-113. Saving provision. 13
If a right with respect to property to which this chapter applies is 14
acquired, extinguished, or barred on the expiration of a limitation period 15
that began to run un der another statute before the effective date of this 16
chapter, that statute continues to apply to the right even if the statute has 17
been repealed or superseded by this chapter. 18
19
28-15-114. Transitional provision. 20
Except as provided in § 28 -15-113, this chapter applies to a judicial 21
proceeding with respect to property to which this chapter applies commenced 22
on or after the effective date of this chapter, regardless of the date of 23
death of the decedent. 24
25
SECTION 2. Arkansas Code Title 28, Chapter 12, is repealed. 26
28-12-101. Application. 27
This chapter applies to the disposition at death of the following property 28
acquired by a married person: 29
(1) All personal property, wherever situated: 30
(i) Which was acquired as or became, and remained, community 31
property under the laws of another jurisdiction; or 32
(ii) All or the proportionate part of that property acquired 33
with the rents, issues, or income of, or the proceeds from, or in exchange 34
for, that community property; or 35
(iii) Traceable to that community property; 36 As Engrossed: H3/15/23 HB1409
8 03-15-2023 10:00:50 LHR009
(2) All or the proportionate part of any real property situated in 1
this state which was acquired with the rents, issues, or income of, the 2
proceeds from, or in exchange for, property acquired as or which became, and 3
remained, community property under the laws of another jurisdiction, or 4
property traceable to that community property. 5
6
28-12-102. Rebuttable presumptions. 7
In determining whether this chapter applies to specific property, the 8
following rebuttable presumptions apply: 9
(1) Property acquired during marriage by a spouse of that marriage 10
while domiciled in a jurisdiction under whose laws property could then be 11
acquired as community property is presumed to have been acquired as or to 12
have become, and remained, property to which this chapter applies; and 13
(2) Real property situated in this state and personal property 14
wherever situated acquired by a married person while domiciled in a 15
jurisdiction under whose laws property could not then be acquired as 16
community property, title to which was taken in a form which created rights 17
of survivorship, is presumed not to be property to which this chapter 18
applies. 19
20
28-12-103. Disposition upon death. 21
Upon the death of a married person, one-half (½) of the property to which 22
this chapter applies is the property of the surviving spouse and is not 23
subject to testamentary disposition by the decedent or distribution under the 24
laws of succession of this state. One-half (½) of that property is the 25
property of the decedent and is subject to testamentary disposition or 26
distribution under the laws of succession of this state. With respect to 27
property to which this chapter applies, the one-half (½) of the property 28
which is the property of the decedent is not subject to the surviving 29
spouse's right to elect against the will and no estate of dower or curtesy 30
exists in the property of the decedent. 31
32
28-12-104. Perfection of title of surviving spouse. 33
If the title to any property to which this chapter applies was held by the 34
decedent at the time of death, title of the surviving spouse may be perfected 35
by an order of the court or by execution of an instrument by the personal 36 As Engrossed: H3/15/23 HB1409
9 03-15-2023 10:00:50 LHR009
representative or the heirs or devisees of the decedent with the approval of 1
the court. Neither the personal representative nor the court in which the 2
decedent's estate is being administered has a duty to discover or attempt to 3
discover whether property held by the decedent is property to which this 4
chapter applies, unless a written demand is made by the surviving spouse or 5
the spouse's successor in interest. 6
7
28-12-105. Perfection of title of personal representative, heir, or 8
devisee. 9
If the title to any property to which this chapter applies is held by the 10
surviving spouse at the time of the decedent's death, the personal 11
representative or an heir or devisee of the decedent may institute an action 12
to perfect title to the property. The personal representative has no 13
fiduciary duty to discover or attempt to discover whether any property held 14
by the surviving spouse is property to which this chapter applies, unless a 15
written demand is made by an heir, devisee, or creditor of the decedent. 16
17
28-12-106. Purchaser for value or lender. 18
(a) If a surviving spouse has apparent title to property to which this 19
chapter applies, a purchaser for value or a lender taking a security interest 20
in the property takes his interest in the property free of any rights of the 21
personal representative or an heir or devisee of the decedent. 22
(b) If a personal representative or an heir or devisee of the decedent has 23
apparent title to property to which this chapter applies, a purchaser for 24
value or a lender taking a security interest in the property takes his 25
interest in the property free of any rights of the surviving spouse. 26
(c) A purchaser for value or a lender need not inquire whether a vendor or 27
borrower acted properly. 28
(d) The proceeds of a sale or creation of a security interest shall be 29
treated in the same manner as the property transferred to the purchaser for 30
value or a lender. 31
32
28-12-107. Creditor's rights. 33
This chapter does not affect rights of creditors with respect to property to 34
which this chapter applies. 35
36 As Engrossed: H3/15/23 HB1409
10 03-15-2023 10:00:50 LHR009
28-12-108. Acts of married persons. 1
This chapter does not prevent married persons from severing or altering their 2
interests in property to which this chapter applies. 3
4
28-12-109. Limitations on testamentary disposition. 5
This chapter does not authorize a person to dispose of property by will if it 6
is held under limitations imposed by law preventing testamentary disposition 7
by that person. 8
9
28-12-110. Uniformity of application and construction. 10
This chapter shall be so applied and construed as to effectuate its general 11
purpose to make uniform the law with respect to the subject of this chapter 12
among those states which enact it. 13
14
28-12-111. Short title. 15
This chapter may be cited as the “Uniform Disposition of Community Property 16
Rights at Death Act.” 17
18
28-12-112. Effective date. 19
This chapter shall become effective on October 1, 1981. 20
21
28-12-113. Repealer. 22
All laws and parts of laws in conflict with this chapter are repealed. 23
24
/s/M. Brown 25
26
27
28
29
30
31
32
33
34
35
36