AR
Arkansas House Bill HB1409

Arkansas 2023 Regular Session

Arkansas House Bill HB1409 Compare Versions

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11 Stricken language would be deleted from and underlined language would be added to present law.
2-Act 582 of the Regular Session
32 *LHR009* 03-15-2023 10:00:50 LHR009
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54 State of Arkansas As Engrossed: H3/15/23 1
65 94th General Assembly A Bill 2
76 Regular Session, 2023 HOUSE BILL 1409 3
87 4
98 By: Representative M. Brown 5
109 By: Senator C. Tucker 6
1110 7
1211 For An Act To Be Entitled 8
1312 AN ACT TO ADOPT THE UNIFORM COMMUNITY PR OPERTY 9
1413 DISPOSITION AT DEATH ACT; TO REPEAL THE C URRENT LAW 10
1514 CONCERNING THE DISPO SITION OF COMMUNITY PROPERTY AT 11
1615 DEATH; AND FOR OTHER PURPOSES. 12
1716 13
1817 14
1918 Subtitle 15
2019 TO ADOPT THE UNIFORM COMMUNITY PROPERTY 16
2120 DISPOSITION AT DEATH ACT. 17
2221 18
2322 19
2423 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 20
2524 21
2625 SECTION 1. Arkansas Code Title 28 is amended to add an additional 22
2726 chapter to read as follows: 23
2827 28-15-101. Title. 24
2928 This chapter may be cited as the Uniform Community Property Disposition 25
3029 at Death Act. 26
3130 27
3231 28-15-102. Definitions. 28
3332 In this chapter: 29
3433 (1) "Community-property spouse" means an individual in a marriage or 30
3534 other relationship: 31
3635 (A) under which community property could be ac quired during the 32
3736 existence of the relationship; and 33
3837 (B) that remains in existence at the time of death of either 34
3938 party to the relationship. 35
4039 (2) "Electronic" means relating to technology having electrical, 36 As Engrossed: H3/15/23 HB1409
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4443
4544 digital, magnetic, wireless, optical, electroma gnetic, or similar 1
4645 capabilities. 2
4746 (3) "Jurisdiction" means the United States, a state, a foreign county, 3
4847 or a political subdivision of a foreign country. 4
4948 (4) "Partition" means voluntarily divide property to which this chapter 5
5049 otherwise would apply. 6
5150 (5) "Person" means an individual, estate, business or nonprofit entity, 7
5251 public corporation, government or governmental subdivision, agency, or 8
5352 instrumentality, or other legal entity. 9
5453 (6) "Personal representative" includes an executor, administrator, 10
5554 successor personal representative, special administrator, and other person 11
5655 that performs substantially the same function. 12
5756 (7) "Property" means anything that may be the subject of ownership, 13
5857 whether real or personal, tangible or intangible, legal or equitable, or an y 14
5958 interest therein. 15
6059 (8) "Reclassify" means change the characterization or treatment of 16
6160 community property to property owned separately by community -property 17
6261 spouses. 18
6362 (9) "Record" means information: 19
6463 (A) inscribed on a tangible medium; or 20
6564 (B) stored in an electronic or other medium and retrievable in 21
6665 perceivable form. 22
6766 (10) "Sign" means, with present intent to authenticate or adopt a 23
6867 record: 24
6968 (A) execute or adopt a tangible symbol; or 25
7069 (B) attach to or logically associate with the record an 26
7170 electronic symbol, sound, or process. 27
7271 (11) "State" means a state of the United States, the District of 28
7372 Columbia, Puerto Rico, the United States Virgin Islands, or any other 29
7473 territory or possession subject to the jurisdiction of the United States. The 30
7574 term includes a federally recognized Indian tribe. 31
7675 32
7776 28-15-103. Included and excluded property. 33
7877 (a) Subject to subsection (b), this chapter applies to the following 34
7978 property of a community -property spouse, without regard to how the property 35
8079 is titled or held: 36 As Engrossed: H3/15/23 HB1409
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8382
8483
8584 (1) if a decedent was domiciled in this state at the time of 1
8685 death: 2
8786 (A) all or a proportionate part of each item of personal 3
8887 property, wherever located, that was community property under the law of the 4
8988 jurisdiction where the decedent or the surviving community -property spouse 5
9089 was domiciled when the property: 6
9190 (i) was acquired; or 7
9291 (ii) after acquisition, became community property; 8
9392 (B) income, rent, profit, appreciation, or other increase 9
9493 derived from or traceable to property described in subparagraph ( A); and 10
9594 (C) personal property traceable to property described in 11
9695 subparagraph (A) or (B); and 12
9796 (2) regardless whether a decedent was domiciled in this state at 13
9897 the time of death: 14
9998 (A) all or a proportionate part of each item of real 15
10099 property located in this state traceable to community property or acquired 16
101100 with community property under the law of the jurisdiction where the decedent 17
102101 or the surviving community -property spouse was domiciled when the property: 18
103102 (i) was acquired; or 19
104103 (ii) after acquisition, became community property; 20
105104 and 21
106105 (B) income, rent, profit, appreciation, or other increase, 22
107106 derived from or traceable to property described in subparagraph (A). 23
108107 (b) If community-property spouses acquired community property by 24
109108 complying with the l aw of a jurisdiction that allows for creation of 25
110109 community property by transfer of property to a trust, this chapter applies 26
111110 to the property only to the extent the property is held in the trust or 27
112111 characterized as community property by the terms of the tru st or the law of 28
113112 the jurisdiction under which the trust was created. 29
114113 (c) This chapter does not apply to property that: 30
115114 (1) community-property spouses have partitioned or reclassified; 31
116115 or 32
117116 (2) is the subject of a waiver of rights granted by this chapter. 33
118117 34
119118 28-15-104. Form of partition, reclassification, or waiver. 35
120119 (a) Community-property spouses domiciled in this state may partition or 36 As Engrossed: H3/15/23 HB1409
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124123
125124 reclassify property to which this chapter otherwise would apply. The 1
126125 partition or reclassification must be in a r ecord signed by both community -2
127126 property spouses. 3
128127 (b) A community-property spouse domiciled in this state may waive a 4
129128 right granted by this chapter only by complying with the law of this state, 5
130129 including this state's choice -of-law rules, applicable to waiv er of a spousal 6
131130 property right. 7
132131 8
133132 28-15-105. Community property presumption. 9
134133 All property acquired by a community -property spouse when domiciled in 10
135134 a jurisdiction where community property then could be acquired by the 11
136135 community-property spouse by operatio n of law is presumed to be community 12
137136 property. This presumption may be rebutted by a preponderance of the 13
138137 evidence. 14
139138 15
140139 28-15-106. Disposition of property at death. 16
141140 (a) One-half of the property to which this chapter applies belongs to 17
142141 the surviving community-property spouse of a decedent and is not subject to 18
143142 disposition by the decedent at death. 19
144143 (b) One-half of the property to which this chapter applies belongs to 20
145144 the decedent and is subject to disposition by the decedent at death. 21
146145 (c) The property that belongs to the decedent under subsection (b) is 22
147146 not subject to the elective -share right of the surviving community -property 23
148147 spouse. 24
149148 (d) Except for the purpose of calculating the augmented estate of the 25
150149 decedent and the elective -share right of the s urviving community-property 26
151150 spouse, this section does not apply to property transferred by right of 27
152151 survivorship or under a revocable trust or other nonprobate transfer. 28
153152 (e) This section does not limit the right of a surviving community -29
154153 property spouse to allowances under § 28 -39-101 et seq., § 28-39-201 et seq., 30
155154 § 28-39-301 et seq., and § 28 -39-401 et seq. 31
156155 (f) If at death a decedent purports to transfer to a third person 32
157156 property that, under this section, belongs to the surviving community -33
158157 property spouse and transfers other property to the surviving community -34
159158 property spouse, this section does not limit the authority of the court under 35
160159 other law of this state to require that the community -property spouse elect 36 As Engrossed: H3/15/23 HB1409
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165164 between retaining the property transferred t o the community-property spouse 1
166165 or asserting rights under this chapter. 2
167166 3
168167 28-15-107. Other remedies available at death. 4
169168 (a) At the death of a community -property spouse, the surviving 5
170169 community-property spouse or a personal representative, heir, or nonprob ate 6
171170 transferee of the decedent may assert a right based on an act of: 7
172171 (1) the surviving community -property spouse or decedent during 8
173172 the marriage or other relationship under which community property then could 9
174173 be acquired; or 10
175174 (2) the decedent that take s effect at the death of the decedent. 11
176175 (b) In determining a right under subsection (a) and corresponding 12
177176 remedy, the court: 13
178177 (1) shall apply equitable principles; and 14
179178 (2) may consider the community property law of the jurisdiction 15
180179 where the decedent or surviving community-property spouse was domiciled when 16
181180 property was acquired or enhanced. 17
182181 18
183182 28-15-108. Right of surviving community -property spouse. 19
184183 (a) The surviving community -property spouse of the decedent may assert 20
185184 a claim for relief with respect to a right under this chapter in accordance 21
186185 with the following rules: 22
187186 (1) In an action asserting a right in or to property, the 23
188187 surviving community-property spouse must: 24
189188 (A) not later than three years after the death of the 25
190189 decedent, commence an action against an heir, devisee, or nonprobate 26
191190 transferee of the decedent that is in possession of the property; or 27
192191 (B) not later than six months after appointment of the 28
193192 personal representative of the decedent, send a demand in a record to the 29
194193 personal representative. 30
195194 (2) In an action other than an action under paragraph (1), the 31
196195 surviving community-property spouse must: 32
197196 (A) not later than six months after appointment of the 33
198197 personal representative of the decedent, send a demand in a record to the 34
199198 personal representative; or 35
200199 (B) if a personal representative is not appointed, commence 36 As Engrossed: H3/15/23 HB1409
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204203
205204 the action not later than three years after the death of the decedent. 1
206205 (b) Unless a timely demand is made under subsection (a)(1)(B) or 2
207206 (2)(A), the personal representative may distribute the assets of the 3
208207 decedent's estate without personal liability for a community -property 4
209208 spouse's claim under this chapter. 5
210209 6
211210 28-15-109. Right of heir, devisee, or nonprobate transferee. 7
212211 An heir, devisee, or nonprobate transferee of a deceased community-8
213212 property spouse may assert a claim for relief with respect to a right under 9
214213 this chapter in accordance with the following rules: 10
215214 (1) In an action asserting a right in or to property, the heir, 11
216215 devisee, or nonprobate transferee must: 12
217216 (A) not later than three years after the death of the 13
218217 decedent, commence an action against the surviving community -property spouse 14
219218 of the decedent who is in possession of the property; or 15
220219 (B) not later than six months after appointment of the 16
221220 personal representative of the decedent, send a demand in a record to the 17
222221 personal representative. 18
223222 (2) In an action other than an action under paragraph (1), the 19
224223 heir, devisee, or nonprobate transferee must: 20
225224 (A) not later than six months after the appointment of the 21
226225 personal representative of the decedent, send a demand in a record to the 22
227226 personal representative; or 23
228227 (B) if a personal representative is not appointed, commence 24
229228 the action not later than three years after the death of the decedent. 25
230229 26
231230 28-15-110. Protection of third person. 27
232231 (a) With respect to property to which this chapter applies, a person is 28
233232 not liable under this chapter to the extent the person: 29
234233 (1) transacts in good faith and for value: 30
235234 (A) with community-property spouse; or 31
236235 (B) after the death of the decedent, with a surviving 32
237236 community-property spouse, personal representative, heir, devisee, or 33
238237 nonprobate transferee of the decedent; and 34
239238 (2) does not know or have reason to know that the other party to 35
240239 the transaction is exceeding or improperly exercising the party's authority. 36 As Engrossed: H3/15/23 HB1409
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244243
245244 (b) Good faith under subsection (a)(1) does not require the person to 1
246245 inquire into the extent or propriety of the exercise of authority by the 2
247246 other party to the transaction. 3
248247 4
249248 28-15-111. Principles of law and equity. 5
250249 The principles of law and equity supplement this chapter except to the 6
251250 extent inconsistent with this chapter. 7
252251 8
253252 28-15-112. Uniformity of application and construction. 9
254253 In applying and construing this chapter, a court shall consider the 10
255254 promotion of uniformity of the law among jurisdictions that enact it. 11
256255 12
257256 28-15-113. Saving provision. 13
258257 If a right with respect to property to which this chapter applies is 14
259258 acquired, extinguished, or barred on the expiration of a limitation period 15
260259 that began to run un der another statute before the effective date of this 16
261260 chapter, that statute continues to apply to the right even if the statute has 17
262261 been repealed or superseded by this chapter. 18
263262 19
264263 28-15-114. Transitional provision. 20
265264 Except as provided in § 28 -15-113, this chapter applies to a judicial 21
266265 proceeding with respect to property to which this chapter applies commenced 22
267266 on or after the effective date of this chapter, regardless of the date of 23
268267 death of the decedent. 24
269268 25
270269 SECTION 2. Arkansas Code Title 28, Chapter 12, is repealed. 26
271270 28-12-101. Application. 27
272271 This chapter applies to the disposition at death of the following property 28
273272 acquired by a married person: 29
274273 (1) All personal property, wherever situated: 30
275274 (i) Which was acquired as or became, and remained, community 31
276275 property under the laws of another jurisdiction; or 32
277276 (ii) All or the proportionate part of that property acquired 33
278277 with the rents, issues, or income of, or the proceeds from, or in exchange 34
279278 for, that community property; or 35
280279 (iii) Traceable to that community property; 36 As Engrossed: H3/15/23 HB1409
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284283
285284 (2) All or the proportionate part of any real property situated in 1
286285 this state which was acquired with the rents, issues, or income of, the 2
287286 proceeds from, or in exchange for, property acquired as or which became, and 3
288287 remained, community property under the laws of another jurisdiction, or 4
289288 property traceable to that community property. 5
290289 6
291290 28-12-102. Rebuttable presumptions. 7
292291 In determining whether this chapter applies to specific property, the 8
293292 following rebuttable presumptions apply: 9
294293 (1) Property acquired during marriage by a spouse of that marriage 10
295294 while domiciled in a jurisdiction under whose laws property could then be 11
296295 acquired as community property is presumed to have been acquired as or to 12
297296 have become, and remained, property to which this chapter applies; and 13
298297 (2) Real property situated in this state and personal property 14
299298 wherever situated acquired by a married person while domiciled in a 15
300299 jurisdiction under whose laws property could not then be acquired as 16
301300 community property, title to which was taken in a form which created rights 17
302301 of survivorship, is presumed not to be property to which this chapter 18
303302 applies. 19
304303 20
305304 28-12-103. Disposition upon death. 21
306305 Upon the death of a married person, one-half (½) of the property to which 22
307306 this chapter applies is the property of the surviving spouse and is not 23
308307 subject to testamentary disposition by the decedent or distribution under the 24
309308 laws of succession of this state. One-half (½) of that property is the 25
310309 property of the decedent and is subject to testamentary disposition or 26
311310 distribution under the laws of succession of this state. With respect to 27
312311 property to which this chapter applies, the one-half (½) of the property 28
313312 which is the property of the decedent is not subject to the surviving 29
314313 spouse's right to elect against the will and no estate of dower or curtesy 30
315314 exists in the property of the decedent. 31
316315 32
317316 28-12-104. Perfection of title of surviving spouse. 33
318317 If the title to any property to which this chapter applies was held by the 34
319318 decedent at the time of death, title of the surviving spouse may be perfected 35
320319 by an order of the court or by execution of an instrument by the personal 36 As Engrossed: H3/15/23 HB1409
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324323
325324 representative or the heirs or devisees of the decedent with the approval of 1
326325 the court. Neither the personal representative nor the court in which the 2
327326 decedent's estate is being administered has a duty to discover or attempt to 3
328327 discover whether property held by the decedent is property to which this 4
329328 chapter applies, unless a written demand is made by the surviving spouse or 5
330329 the spouse's successor in interest. 6
331330 7
332331 28-12-105. Perfection of title of personal representative, heir, or 8
333332 devisee. 9
334333 If the title to any property to which this chapter applies is held by the 10
335334 surviving spouse at the time of the decedent's death, the personal 11
336335 representative or an heir or devisee of the decedent may institute an action 12
337336 to perfect title to the property. The personal representative has no 13
338337 fiduciary duty to discover or attempt to discover whether any property held 14
339338 by the surviving spouse is property to which this chapter applies, unless a 15
340339 written demand is made by an heir, devisee, or creditor of the decedent. 16
341340 17
342341 28-12-106. Purchaser for value or lender. 18
343342 (a) If a surviving spouse has apparent title to property to which this 19
344343 chapter applies, a purchaser for value or a lender taking a security interest 20
345344 in the property takes his interest in the property free of any rights of the 21
346345 personal representative or an heir or devisee of the decedent. 22
347346 (b) If a personal representative or an heir or devisee of the decedent has 23
348347 apparent title to property to which this chapter applies, a purchaser for 24
349348 value or a lender taking a security interest in the property takes his 25
350349 interest in the property free of any rights of the surviving spouse. 26
351350 (c) A purchaser for value or a lender need not inquire whether a vendor or 27
352351 borrower acted properly. 28
353352 (d) The proceeds of a sale or creation of a security interest shall be 29
354353 treated in the same manner as the property transferred to the purchaser for 30
355354 value or a lender. 31
356355 32
357356 28-12-107. Creditor's rights. 33
358357 This chapter does not affect rights of creditors with respect to property to 34
359358 which this chapter applies. 35
360359 36 As Engrossed: H3/15/23 HB1409
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364363
365364 28-12-108. Acts of married persons. 1
366365 This chapter does not prevent married persons from severing or altering their 2
367366 interests in property to which this chapter applies. 3
368367 4
369368 28-12-109. Limitations on testamentary disposition. 5
370369 This chapter does not authorize a person to dispose of property by will if it 6
371370 is held under limitations imposed by law preventing testamentary disposition 7
372371 by that person. 8
373372 9
374373 28-12-110. Uniformity of application and construction. 10
375374 This chapter shall be so applied and construed as to effectuate its general 11
376375 purpose to make uniform the law with respect to the subject of this chapter 12
377376 among those states which enact it. 13
378377 14
379378 28-12-111. Short title. 15
380379 This chapter may be cited as the “Uniform Disposition of Community Property 16
381380 Rights at Death Act.” 17
382381 18
383382 28-12-112. Effective date. 19
384383 This chapter shall become effective on October 1, 1981. 20
385384 21
386385 28-12-113. Repealer. 22
387386 All laws and parts of laws in conflict with this chapter are repealed. 23
388387 24
389388 /s/M. Brown 25
390389 26
391390 27
392-APPROVED: 4/11/23 28
391+ 28
393392 29
394393 30
395394 31
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