Issues of Inheritance Planning

How Arkansas inheritance law treats unmentioned children, adopted and adult-adopted children, posthumous children, nonmarital children, advancements, and half-siblings — the issues that complicate the otherwise simple per stirpes default.

In most circumstances, inheritance planning is relatively straightforward, particularly where you want to leave your property to your surviving children. Most families accomplish this with a simple per stirpes designation, which ensures each branch of the family receives its intended share. Passing down property to children is generally an uncomplicated process and easily accomplished.

Yet there are various issues that may complicate the inheritance of children and consequently your inheritance planning. In this post, I will discuss the inheritance of children and some of the issues that may arise in nontraditional or unusual situations.

Disinheriting Children

As I discussed in more detail in a previous post, Arkansas law assumes that a child unmentioned in a will was left out unintentionally by the testator. Consequently, such an unmentioned child will inherit what he or she would have had the testator died without a will.

Disinheriting a child, therefore, requires that the will specifically mention the child and state that the child — or class of children, or children in general — is not to inherit.

Inheritance of Adopted Children

For purposes of inheritance, Arkansas considers adopted children the children of their adopting parents. They are treated the same as natural-born children for inheritance purposes.

The reciprocal of this is that adopted children cannot inherit from their natural parents — with one exception. A child adopted by the spouse of a natural parent may still inherit from the other natural parent, so long as that parent retains parental rights. The adoption of a child by a stepfather, for instance, does not necessarily bar the child from inheriting from the natural father.

Inheritance rights run both ways. In a previous post, I noted that when an individual dies without a spouse, children, or a will, that person’s parents will inherit. In this situation, an individual’s adoptive parents are considered the parents. Natural parents cannot inherit through a child who has been adopted by someone else — again, with the stepparent-adoption exception.

It is important to recognize that adoption is irreversible. Once it is done, it is done. When performing your inheritance planning, factor in the potential effects of adoption on your estate plan.

Adult Adoption

Sometimes adoptions are performed for the sole purpose of inheritance planning. A particularly unusual situation can arise in the setting of adult adoptions: individuals — particularly those with large estates — have occasionally adopted spouses or significant others to secure inheritance rights.

This has struck many people as troubling, and Arkansas does not recognize adult adoption of a spouse or any other individual with whom the adopting parent has a sexual relationship. Some jurisdictions do recognize such adoptions, so this may matter in cross-state planning.

Posthumous Children

Posthumous children can present their own issues. As a general rule, a child born within 280 days of a deceased husband’s death is presumed to be the child of the deceased husband, though the presumption is rebuttable.

The more controversial situations arise where children are born using a deceased husband’s frozen sperm or frozen embryos. Modern technology allows a man to father children years after his death. States and jurisdictions differ on the inheritance and federal-benefits consequences; see Astrue v. Capato on the Social Security side.

At this time, Arkansas does not recognize inheritance rights for posthumous children where the onset of pregnancy occurs after the father’s death.

Nonmarital Children

Inheritance planning becomes more complicated where nonmarital children are involved. Children born outside marriage — traditionally referred to as illegitimate children — can still inherit through their biological father. Nonmarital children have full inheritance rights.

Establishing paternity, however, can be difficult. Children born in wedlock are presumed to be the children of the husband — though that is unfortunately not always the case — while nonmarital children must affirmatively establish paternity.

For inheritance purposes, claims of paternity in Arkansas must be filed within 180 days of the beginning of probate proceedings. All evidence of paternity must be included in that filing. This creates a tight timeframe for gathering the necessary evidence, particularly where paternity evidence had not previously been collected.

Advancements

Another method of inheritance planning takes the form of an advancement. An advancement occurs when an individual, while living, gives a gift to an intended will beneficiary that is meant to count against that beneficiary’s eventual inheritance.

For there to be an advancement, there must be a writing — contemporaneous with the gift and signed by the giver — that specifically says the gift is an advancement, or a writing by the recipient acknowledging the gift as an advancement.

If such a writing exists, the gift will reduce the inheritance of the recipient. Without it, the gift is simply a gift and has no effect on the distribution of the decedent’s estate after death.

Inheritance of Siblings

While related more to intestate succession than to specific inheritance planning, it is worth noting that a half-sibling is treated the same as a full-blood sibling. So if an individual dies without a will and has no children, spouse, or living parents — or has a will that simply leaves property to “my brothers and sisters” — half-siblings will inherit the same as full-blood siblings.

Disclaimer: This post is for informational purposes only and is not legal advice. Inheritance, paternity, and intestate-succession rules vary significantly by state and turn on fact-specific timing requirements; consult a qualified probate attorney in your jurisdiction about your situation.

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