Arkansas Heirs Property: A 45-Day Buyout, a 2016 Cut-Off, and Upkeep That Counts in Court

Arkansas, Texas and Alabama all enacted the Uniform Partition of Heirs Property Act, and the definition of heirs property is the same in all three. Arkansas is the one in the middle: its buyout machinery follows Texas, its partition-in-kind factors follow Alabama, and it adds a commencement rule of its own. If you deal with inherited property across the region, that mixture is the thing to know.

What the Subchapter Covers, and From When

The Act is codified at A.C.A. §§ 18-60-1001 et seq., enacted by Acts 2015, No. 107. Section 18-60-1003 sets its reach in three short subsections. Subsection (a): "This subchapter applies to partition actions filed on or after January 1, 2016." Subsection (b): in an action to partition real property under § 18-60-401 et seq., the court shall determine whether the property is heirs property, and if it is, the property must be partitioned under this subchapter unless all the cotenants otherwise agree in a record. Subsection (c): the subchapter supplements § 18-60-401 et seq. and, where it governs, replaces inconsistent provisions of it.

That filing-date rule is worth noting because neither Texas nor Alabama frames applicability the same way. Arkansas keys it to when the action was filed, written into the statute itself rather than left to the enacting act's effective date.

The Definition, and Where Arkansas Words It Differently

Section 18-60-1002(5) defines heirs property as real property held in tenancy in common satisfying all of three requirements as of the filing of a partition action: no agreement in a record binding all the cotenants that governs partition; one or more cotenants acquired title from a relative, living or deceased; and any of three thresholds — 20 percent or more of the interests held by cotenants who are relatives, 20 percent or more held by an individual who acquired title from a relative, or 20 percent or more of the cotenants being relatives. That is the uniform test.

The supporting definitions are drafted more tightly than in the neighbouring states. "Ascendant" expressly includes an adoptive parent and his or her ascendants; "descendant" expressly includes an adopted child and his or her descendants; and "collateral" is defined by cross-reference to § 28-9-214, Arkansas's own intestate succession provision. The catch-all in "relative" then reaches an individual otherwise related by marriage or law of this state — adoption having already been dealt with in the two definitions above rather than listed again.

The Buyout: Forty-Five Days, Then Sixty

Section 18-60-1007 runs the buyout, and it tracks the Texas provision closely. Where any cotenant has requested partition by sale, after the determination of value under Section 18-60-1006 the court sends notice that any cotenant except one that requested the sale may buy all the interests of those who did.

• Election: not later than 45 days after the notice is sent — the same window Texas allows, and half as long again as Alabama's 30 days
• Price: the value of the entire parcel determined under Section 18-60-1006, multiplied by the selling cotenant's fractional ownership of the entire parcel
• Multiple electing cotenants: the court allocates the right to buy in proportion to each electing cotenant's existing fractional ownership divided by the total of all those electing
• No one elects: the court notifies the parties and resolves the action under Section 18-60-1008(a) and (b)
• Payment: the court sets a date not sooner than 60 days after the date notice was sent, for electing cotenants to pay their apportioned price into court

Note what Arkansas does not have. Alabama builds in machinery for cotenants who are unknown, unlocatable, or served but never appearing, including a guardian ad litem who may decline to elect without liability. Arkansas's subchapter contains no equivalent in this section — which matters in exactly the cases where heirs property is hardest, because after three generations some cotenants cannot be found.

The Factors: Arkansas Follows Alabama

If the interests are not bought out, Section 18-60-1008 and Section 18-60-1009 decide whether the land is divided or sold. Section 18-60-1009(a) asks whether partition in kind would result in "great prejudice to the cotenants as a group" — Arkansas's phrasing sits between Alabama's "great prejudice to the cotenants" and Texas's "substantial prejudice to the cotenants as a group" — and lists seven considerations the court shall weigh.

• Whether the property practicably can be divided among the cotenants
• Whether division would leave the parcels worth materially less in aggregate than a sale of the whole, taking into account the condition under which a court-ordered sale likely would occur
• Evidence of the collective duration of ownership or possession by a cotenant and relatives who preceded them in title or possession
• A cotenant's sentimental attachment, including attachment arising because the property has ancestral or other unique or special value
• The lawful use a cotenant is making of the property and the harm if that use could not continue
• The degree to which cotenants have contributed their pro rata share of taxes, insurance and other expenses of maintaining ownership, "or have contributed to the physical improvement, maintenance, or upkeep of the property"
• Any other relevant factor

The sixth is the one that rewards records. Arkansas, like Alabama and unlike Texas, counts the physical work as well as the money — a cotenant who has kept the roof sound and the grass down has contributed within the meaning of the statute even where someone else paid the tax bill. Section 18-60-1009(b) then prevents the court treating any single factor as dispositive without weighing the totality, so no one factor wins alone, and none is wasted either.

The Three States Side by Side

See Texas heirs' property and Alabama heirs property for those provisions in full. Note also that Louisiana, Oklahoma and Ohio have not adopted the uniform act, so none of this applies there.

What Holds the Case Up Is the House

The statute resolves ownership; it does not look after the building while that happens. Arkansas heirs property is frequently rural, frequently vacant, and frequently in a county none of the cotenants live in — and the time between a death and a resolved partition runs in years, not months. A house that has fallen in during that period damages the appraisal the whole buyout is priced against, and undercuts the argument that the family should keep it.

Where one relative is willing to act, the two useful things they can do are keep the building intact and keep the record. Section 18-60-1009(a)(6) turns the second into evidence on a question the court is required to decide.