Ark. Code Ann. § 28-26-104 (2026)
Failure of a testamentary provision
Unless a contrary intent is indicated by the terms of the will, the following rules shall apply:
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Except as provided in subdivision (2) of this section:
- If a devise other than a residuary devise fails for any reason, it becomes a part of the residue; and
- If the residue is devised to two (2) or more persons and the share of one (1) of the residuary devisees fails for any reason, his or her share passes to the other residuary devisee, or to other residuary devisees in proportion to their interests in the residue; and
- Whenever property is devised to a child, natural or adopted, or other descendant of the testator, either by specific provision or as a member of a class, and the devisee shall die in the lifetime of the testator, leaving a child, natural or adopted, or other descendant who survives the testator, the devise shall not lapse, but the property shall vest in the surviving child or other descendant of the devisee, as if the devisee had survived the testator and died intestate.
History. Acts 1949, No. 140, § 26; 1979, No. 813, § 1; A.S.A. 1947, § 60-410.
Research References
Ark. L. Rev.
Descent in Absence of Kin — Escheat, 13 Ark. L. Rev. 350.
The Doctrine of Worthier Title in Arkansas, 21 Ark. L. Rev. 394.
The New Arkansas Inheritance Laws: A Step into the Present with an Eye to the Future, 23 Ark. L. Rev. 313.
Case Note, Cox v. Whitten: Limiting the Inheritance Rights of Adopted Adults, etc., 40 Ark. L. Rev. 627.
U. Ark. Little Rock L.J.
Jans, Survey of Decedents' Estates, 3 U. Ark. Little Rock L.J. 216.
Survey of Arkansas Law, Decedents' Estates, 5 U. Ark. Little Rock L.J. 135.
Case Notes
Adopted Children.
Adopted children of predeceased legatee were held to be within statutory provisions. Dean v. Smith, 195 Ark. 614, 113 S.W.2d 485 (1938) (decision under prior law).
Death of Legatee or Devisee Prior to Testator.
A legacy or devise lapses when the legatee or devisee dies before the testator with the exception of where the legacy or devise is to the child or other descendant of the testator. Christy v. Smith, 226 Ark. 289, 289 S.W.2d 885 (1956).
Where the legatee or devisee dies before the testator, the legacy or devise lapses unless the beneficiary is a child or other descendant of the testator or where it is a gift to a class. Scholem v. Long, 246 Ark. 786, 439 S.W.2d 929 (1969).
Where the residuary clause of the will of a testator left all property to a brother who survived testator and to a sister who predeceased testator, the bequest of one-half of the residuum to the sister lapsed and the bequest passed as intestate property to be distributed to the heirs-at-law of the testator. Eckert Heirs v. Harlow, 251 Ark. 1018, 476 S.W.2d 244 (1972).
Circuit court erred in ruling that the interests of beneficiaries who predeceased the surviving settlor of an inter vivos trust lapsed upon the death of the beneficiaries; rather, the beneficiaries' descendants were entitled to the beneficiaries' shares of the trust distribution upon the settlor's death. Tait v. Community First Trust Co., 2012 Ark. 455, 425 S.W.3d 684 (2012).
Distributive Gift.
A devise of land to three cousins of testator who were described by name and not by relationship was a distributive gift to individuals rather than a gift to a class, and the gift lapsed as to one of the cousins when his death preceded the death of the testator, notwithstanding a clause in the will providing that the devisees were not to sell or mortgage the property for 20 years after death of testator. Scholem v. Long, 246 Ark. 786, 439 S.W.2d 929 (1969).
Lapsed Legacy.
A legacy or devise to one not a descendant of the testator lapses when the legatee or devisee dies before the testator and becomes part of the residuary estate passing under the clause of the will disposing of the residuum. Gibbons v. Ward, 115 Ark. 184, 171 S.W. 90 (1914) (decision under prior law).
Life Estate.
A devise to A for life, with remainder to B, does not lapse by the death of A in the lifetime of the testator, but vests immediately in B on the death of the testator. West v. Williams, 15 Ark. 682 (1855) (decision under prior law).
Cited: Welch v. Tarver, 256 Ark. 272, 507 S.W.2d 505 (1974); Jones v. Bransford, 270 Ark. 664, 606 S.W.2d 118 (Ct. App. 1980).