Quick FAQ: Compelling a Spouse to Sell the House and Distribute Proceeds (Arkansas)

Short answer

If a decedent’s will directs sale of the family home and distribution of the proceeds, you normally must open probate, get the personal representative (executor) appointed, and ask the probate court to authorize sale and distribution. A surviving spouse may have statutory rights (homestead, year’s allowance, elective share or exempt property) that can slow or change what the court orders. If the spouse refuses to cooperate, the executor can ask the court to order sale and, if needed, order eviction or partition. Because outcomes depend on the will language and the spouse’s legal rights, seek a probate attorney early.

Detailed answer — step-by-step (assume these hypothetical facts)

Hypothetical: Jane Doe dies leaving a valid will that says “I direct my executor to sell the family home and distribute the proceeds equally among my three children.” Jane’s surviving spouse (John) refuses to vacate, refuses to sign paperwork, and blocks listing or sale of the house.

1. Start by opening probate and getting authority

If no probate is open, file the will with the local probate/circuit court and petition to be appointed personal representative (executor). Once the court issues letters testamentary, the executor has legal authority to act for the estate. Arkansas probate law and procedures are found in the Arkansas Code, Title 28 (Probate, Decedents’ Estates, and Fiduciaries): https://www.arkleg.state.ar.us/ArkansasCode/Title?title=28.

2. Identify the spouse’s legal interests before forcing a sale

Before the court orders sale, determine whether the spouse has any of these protections or interests that may limit immediate sale or distribution:

Homestead rights: Arkansas law protects a surviving spouse’s homestead and may prevent a forced sale without allowance for those rights.
Year’s allowance/exempt property: A surviving spouse may be entitled to a short-term allowance from the estate for support and to certain exempt personal property.
Elective share or marital rights: If the spouse elects against the will (or state law gives an elective share), the spouse may claim a portion of the estate that affects net distribution.
Title form: If house title was held jointly with right of survivorship or held in trust, the house might pass outside probate.

All of these can change how the court handles the requested sale. An executor should identify and assert or resolve these claims in probate before final distribution.

3. Ask the probate court to authorize sale and for instructions

If the will directs sale, but the spouse resists, the executor typically files a motion or petition in probate court asking the judge to authorize the sale and to resolve competing claims. If the will gives the executor authority to sell without further court approval, the executor still often files a written account/notice to beneficiaries and the spouse so they can object. If the spouse objects claiming homestead or an elective share, the court will resolve those claims before or as part of the sale order.

4. If court approval is required or desired, get an order for sale

If the court grants the executor authority to sell, it will issue an order specifying sale terms and how sale proceeds will be handled (e.g., hold in escrow until claims resolved, pay debts, then distribute net proceeds per will). The court can require notice to interested parties, set bidding procedures, and require the executor to seek the best price reasonably available.

5. Dealing with a spouse who refuses to vacate

If the spouse refuses to leave after a court-authorized sale, the executor can ask for a writ of possession or an order for eviction/enforcement. If the house must be partitioned and sale is the only practical remedy, a chancery/civil court can order partition by sale. If the spouse claims a life estate, homestead, or other interest, the court will resolve those claims first and either compensate the spouse from sale proceeds or adjust distributions.

6. Consider settlement or buyout alternatives

To avoid costly litigation, consider offering the spouse a buyout for a portion of the net proceeds or negotiate a life estate buyout. Many disputes resolve by mediated agreement where the spouse receives a lump-sum or monthly support in exchange for vacating and releasing the property.

7. Timelines and likely outcomes

Typical timeline: opening probate (weeks–months), notice and claim period (statutorily prescribed times), motions and court hearings (weeks–months), and sale process (months). If the spouse has valid statutory rights, the court may reserve part of the proceeds or give the spouse an elective share or homestead allowance before distributing the remainder per the will. If the spouse has no enforceable interest, the court can order sale and distribution as the will directs.

Relevant Arkansas law resources

Arkansas Code — Title 28 (Probate, Decedents’ Estates, and Fiduciaries): https://www.arkleg.state.ar.us/ArkansasCode/Title?title=28
Arkansas Courts (general court information and local court contacts): https://www.arcourts.gov/

What you should bring to a consultation with a probate attorney

Original will and any codicils.
Death certificate.
Title documents or deed for the house.
Mortgage statements and proof of debts secured by the house.
Any communications from the surviving spouse about occupation or claims (letters, texts, emails).
Names and contact info for heirs and potential beneficiaries.

Common defenses a spouse may raise

Claim to homestead exempting the house from immediate sale.
Elective share or statutory marital share election.
Claim that the house passed outside probate (joint tenancy, trust, or deed to spouse).
Allegation that the will is invalid for lack of capacity or undue influence.

Costs and practical considerations

Litigation costs and delays can reduce net proceeds. Selling cooperatively often yields a higher sale price and lower costs. Keep beneficiaries informed and document every step. The court will prioritize paying estate debts and valid statutory claims before distributing remaining proceeds to beneficiaries under the will.

Helpful Hints

Open probate promptly to get legal authority as executor.
Identify all marital and statutory claims early (homestead, elective share, year’s allowance).
Keep clear records of attempts to contact and negotiate with the spouse; courts value evidence of good-faith efforts.
Consider mediation before filing contested motions; it often saves time and money.
If the spouse lives in the house, ask the court about temporary rent or occupancy charges pending resolution.
Ask your attorney whether a partition action, a probate sale, or sale by a chancery court is the fastest route in your county.
Remember that title issues (joint tenancy, trust ownership, or deeds) can remove the property from probate entirely—don’t assume probate controls until you check title.

Where to get help

Contact a probate attorney experienced in Arkansas estate administration. For local court processes and contacts, see the Arkansas Courts website: https://www.arcourts.gov/. If you need help finding an attorney, contact the Arkansas Bar Association or local county courthouse for referrals.

Disclaimer

This article explains general principles of Arkansas probate law and is for educational purposes only. It is not legal advice, does not create an attorney-client relationship, and may not reflect the most recent changes in the law. For advice about a specific situation, consult a licensed Arkansas attorney.