Detailed answer

If a person dies before a divorce is finalized in Arkansas, the person they were still legally married to at the time of death is treated as the surviving spouse for probate purposes. Being legally married at death, even if separated or in the middle of divorce proceedings, generally preserves the surviving spouse’s statutory rights to inherit, to claim family allowances, and to assert other probate protections unless the parties’ legal relationship was otherwise changed by court order or by the decedent’s valid estate planning documents.

What that means in practice

• Intestate succession: If the decedent died without a valid will, Arkansas’s intestacy rules treat the living spouse as an heir. The spouse will inherit according to the formulas in Arkansas’s probate code for intestate succession, potentially together with the decedent’s descendants depending on who survives the decedent.
• Wills and beneficiary designations: If the decedent left a will that names the spouse, the gift to the spouse typically remains effective if the divorce is not yet final. (Some states automatically revoke gifts to a divorced spouse once the divorce becomes final; in Arkansas the key point is the legal marital status at death.) Likewise, beneficiary designations on accounts or insurance payables generally follow the named beneficiary unless a different legal mechanism applies.
• Elective rights, homestead, exempt property, and family allowance: A surviving spouse may be entitled to statutory protections such as a family allowance (for support during the estate administration), homestead rights, and exempt personal property under Arkansas probate law. These rights are intended to prevent a surviving spouse from being left without immediate resources while probate proceeds.
• Pending divorce orders and court directions: If a court already entered orders during the divorce process that change property rights (for example, temporary property division, a binding property settlement, or a court-ordered transfer), those orders can affect the estate distribution. But absent clear enforceable orders that terminated the marriage or altered inheritance rights, the legal spouse remains the spouse for estate claims.
• Agreements between spouses: If the spouses had a valid separation agreement or property settlement agreement that addressed inheritance or property division, those agreements can affect what the estranged spouse can claim from the estate. The enforceability of the agreement depends on its terms and whether a court approved it.

Example scenarios

Hypothetical 1 — No will, divorce pending: John and Mary are legally married but separated; John files for divorce but dies before the divorce is finalized. Under Arkansas probate practice, Mary is still John’s surviving spouse. Mary may inherit under intestacy rules, claim a family allowance, and assert homestead or exempt property rights unless a binding court order or valid agreement says otherwise.

Hypothetical 2 — Will names spouse, divorce not final: Sam and Alex are separated and Sam executes a will leaving everything to Alex. Sam later files for divorce but dies before entry of final decree. Because the divorce never became final, the bequest to Alex in the will generally stands and Alex can claim that bequest in probate.

Where Arkansas statute and court procedure come in

Arkansas’s probate and intestacy rules are set out in the state code governing wills, trusts, and administration of estates. The code also describes surviving spouse protections such as family allowance and exempt property. For the underlying statutory text and procedural rules, see Title 28 of the Arkansas Code (Wills, Trusts, and Administration of Estates): https://www.arkleg.state.ar.us/ArkansasCode/Title/28

Important limitations and complications

• If a divorce decree is already final, the former spouse is no longer the surviving spouse and loses the statutory inheritance rights that a spouse would otherwise have.
• Temporary or interlocutory orders in the divorce case may address property control while the divorce is pending; some orders may limit a spouse’s ability to claim, but such orders must be clear and enforceable to modify statutory probate rights.
• Joint assets with rights of survivorship and certain payable-on-death designations bypass probate and pass to the named co-owner or beneficiary regardless of marital status at death, unless the account was changed by court order.

Practical steps if you face this situation

1. Obtain the death certificate and the decedent’s marriage certificate to prove marital status at death.
2. Locate a copy of any will, beneficiary designations, separation agreement, or pending court orders in the divorce file.
3. Open probate (or contact the personal representative) promptly to assert any spousal rights such as family allowances, homestead, or exempt property.
4. Consult a probate lawyer licensed in Arkansas to evaluate how the pending divorce and any court orders affect the estate.

Important: This explanation is educational only and is not legal advice. An attorney can review the specific documents, court orders, and facts to determine the surviving spouse’s exact rights under Arkansas law.

Helpful hints

• Document the marital status at death: A marriage certificate and court docket for the pending divorce are key documents for probate.
• Search for a will and beneficiary forms before probate: Many disputes arise because people forget about beneficiary designations or joint-account rules that bypass wills.
• Act quickly to claim family allowance and exempt property: These protections provide near-term support to a surviving spouse while probate proceeds.
• Review any separation agreement or temporary orders: They may include enforceable property allocations or restrictions that affect estate claims.
• Get local legal help: Probate practice and timelines vary by county. An Arkansas probate attorney can file necessary paperwork and protect spousal rights promptly.
• Keep communications with the probate court civil and in writing: Probate disputes can escalate quickly; records matter.

Further reading: Arkansas Code, Title 28 (Wills, Trusts, and Administration of Estates): https://www.arkleg.state.ar.us/ArkansasCode/Title/28