Ark. Code Ann. § 28-9-209 (2026)

Research References

Ark. L. Rev.

Legitimacy and Paternity, 14 Ark. L. Rev. 55.

Fuqua, Comments: Bastardy Law in Arkansas — The Need for Revision, 33 Ark. L. Rev. 178.

Mark James Chaney, Recent Developments: Arkansas Supreme Court Holds Presumed-Legitimate Children Seeking to Inherit from Out-of-Wedlock Fathers Must Meet the Same Statutory Requirements as Illegitimate Children to Make a Claim Against an Estate, and Paternity Must Be Established Within 180 Days of the Decedent's Death, 67 Ark. L. Rev. 509 (2014).

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Constitutional Law, 1 U. Ark. Little Rock L.J. 140.

Survey of Arkansas Law, Decedents' Estates, 1 U. Ark. Little Rock L.J. 185.

Survey of Arkansas Law, Family Law, 1 U. Ark. Little Rock L.J. 200.

Jans, Survey of Decedents' Estates, 3 U. Ark. Little Rock L.J. 216.

Arkansas Law Survey, Irving, Family Law, 9 U. Ark. Little Rock L.J. 173.

Survey — Property, 11 U. Ark. Little Rock L.J. 243.

Case Notes

Constitutionality.

This section does not unconstitutionally discriminate against blacks. Brown v. Danley, 263 Ark. 480, 566 S.W.2d 385, cert. denied, 439 U.S. 983, 99 S. Ct. 572, 58 L. Ed. 2d 654 (1978).

Former provision of subsection (d) limiting the right of an illegitimate child to inherit from its father bore no rational relationship to any legitimate state purpose. Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979) (decision under prior law).

This section does not violate the equal protection clause of U.S. Const. Amend. 14. Statutory differentiation based solely on illegitimacy can be justified by a state's interests in preventing spurious claims against intestate estates, and in the maintenance of a prompt and accurate method of distributing an intestate's property. Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988).

Requirement that an action be filed and a condition satisfied within 180 days did not violate a purported beneficiary's federal constitutional due process rights because she had no right to bring a paternity action on her own behalf since she was a person for whom paternity was presumed. The purported beneficiary was seeking to recover as a pretermitted heir. Bell v. McDonald, 2014 Ark. 75, 432 S.W.3d 18 (2014).

Requirement that an action be filed and a condition satisfied within 180 days did not violate a purported beneficiary's federal constitutional equal protection rights because she had no right to bring a paternity action on her own behalf since she was a person for whom paternity was presumed. The purported beneficiary was seeking to recover as a pretermitted heir. Bell v. McDonald, 2014 Ark. 75, 432 S.W.3d 18 (2014).

Applicability.

Former statute was not applicable where question involved was whether child born after divorce was issue of the marriage. George v. George, 247 Ark. 17, 444 S.W.2d 62 (1969) (decision under prior law).

This section and § 28-40-103 are not applicable in a paternity case; paternity action must be commenced in chancery court because it is not a determination of heirship. In re Estate of F.C., 321 Ark. 191, 900 S.W.2d 200 (1995).

This section is irrelevant in the context of the distribution of the proceeds of a wrongful-death settlement. Rager v. Turley, 68 Ark. App. 187, 6 S.W.3d 113 (1999).

Subsection (d) does not apply to claims to share in a wrongful-death settlement. Rager v. Turley, 342 Ark. 223, 27 S.W.3d 729 (2000).

Where the alleged heir had never been determined a legitimate heir of the decedent, his petition for appointment as administrator of the estate could not constitute an action or claim against the estate under subsection (d) of this section because the alleged heir did not comply with the 180-day requirement. Burns v. Estate of Cole, 364 Ark. 280, 219 S.W.3d 134 (2005).

Annulment of Marriage.

Annulment decree against mother on the ground that she was pregnant by other man, which was offered into evidence to determine heirship of son to intestate's estate, was not res judicata as to question of legitimacy of son. Earp v. Earp, 250 Ark. 107, 464 S.W.2d 70 (1971) (decision under prior law).

Bigamous Marriage.

Children of bigamous marriage were legitimate and entitled to inherit from their father. Evatt v. Miller, 114 Ark. 84, 169 S.W. 817 (1914); Cooper v. McCoy, 116 Ark. 501, 173 S.W. 412 (1915); Morrison v. Nicks, 211 Ark. 261, 200 S.W.2d 100 (1947) (decision under prior law).

Marriage between plaintiff and defendant while defendant was legally married to another was void, but divorce proceeding would be remanded for the purpose of entering order legitimatizing children born of union. Bruno v. Bruno, 221 Ark. 759, 256 S.W.2d 341 (1953) (decision under prior law).

The fact that a mother may not have been divorced from former husband would not be material insofar as the legitimacy of a child is concerned. Yocum v. Holmes, 222 Ark. 251, 258 S.W.2d 535 (1953) (decision under prior law).

Inheritance by Illegitimate Child.

Where a serviceman's life insurance policy named no beneficiary but stated that proceeds were to go first to a widow, second to a child, and third to his parents, the proceeds would go to his illegitimate child whose paternity he had acknowledged by affidavit filed in court. Cantrell v. Prudential Ins. Co. of Am., 252 Ark. 70, 477 S.W.2d 484 (1972).

This section giving an illegitimate child 180 days to file a claim creates a new right, and the right is created for only 180 days. State interests may justify the imposition of special requirements upon an illegitimate child who asserts a right to inherit from her father, and, of course, it justifies the enforcement of generally applicable limitations on the time and the manner in which claims may be asserted. Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988).

Because there is no comma separating “illegitimate child” and the modifier “except such as would inherit under the law of descent and distribution” in the definition of child in § 28-1-102(a)(1), the General Assembly intended for “except such as would inherit…” to modify only “illegitimate children.” McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994).

The heirs of the decedent were not estopped from invoking the requirement of subsection (d) of this section that the illegitimate son of the decedent commence an action against the decedent's estate within 180 days of the decedent's death, notwithstanding that the illegitimate son had been acknowledged by the decedent, that he was named as the decedent's son in his obituary, and that he was described as an heir in a deed. Rasberry v. Ivory, 67 Ark. App. 227, 998 S.W.2d 431 (1999).

Illegitimate child was awarded a share of his father's estate as a pretermitted heir under § 28-39-407(b) where the wife waived an issue regarding competent jurisdiction by failing to object to a failure to join the estate in a paternity action; moreover, collateral estoppel applied because the wife appeared at the paternity proceeding, it was fully litigated, the necessary party issue was not raised, and no appeal was filed. Taylor v. Hamilton, 90 Ark. App. 235, 205 S.W.3d 149 (2005).

Time limitations in the nonclaim statute, § 28-50-101(a), do not apply to claims by illegitimate children under subsection (d) of this section; therefore, the trial court did not err by finding that an illegitimate son was a pretermitted heir. Taylor v. Hamilton, 90 Ark. App. 235, 205 S.W.3d 149 (2005).

Circuit court did not err in finding that one of the six conditions set out in subdivisions (d)(1)-(6) was required to be satisfied within 180 days from the death of the decedent; the alleged heir failed to commence an action or assert a claim pursuant to the statute. Burns v. Estate of Cole, 364 Ark. 280, 219 S.W.3d 134 (2005).

Decedent's illegitimate, pretermitted child was not entitled to inherit from decedent as he was required to meet requirements of §§ 28-39-407(b), 28-1-102(a)(1), and the six requirements of subsection (d) of this section, but he failed to show that he had been recognized by the decedent or by a court and he failed to file his action within 180 days of decedent's death. Shelton v. Keathley, 367 Ark. 568, 242 S.W.3d 223 (2006).

Under a plain reading of the language in this section, one of the six conditions must have been satisfied and an action commenced or a claim asserted against the estate prior to the expiration of the 180-day time period. Therefore, where a paternity case was not completed within the time period, a purported beneficiary failed to state a claim to recover from an estate as a pretermitted heir. Bell v. McDonald, 2014 Ark. 75, 432 S.W.3d 18 (2014).

Circuit court did not err in recognizing a son born out of wedlock as the decedent's sole heir because the son satisfied the written-acknowledgment condition in subsection (d) of this section; a beneficiary-designation form depicted that the decedent clearly wrote “son” and provided the son's proper name, Social Security number, date of birth, address, phone number, and gender on the form, and the 180-day limit was satisfied because the form was completed before decedent's death. Noble v. Neal, 2019 Ark. App. 86, 572 S.W.3d 40 (2019).

Court's establishment of paternity is the particular statutory condition that must be met within 180 days following decedent's death; a decedent's acknowledgment must have been accomplished before the decedent's death, allowing a child born out of wedlock 180 days following a putative father's death to make a claim based on the decedent's written acknowledgment. Noble v. Neal, 2019 Ark. App. 86, 572 S.W.3d 40 (2019).

Presumption of Legitimacy.

A parent's testimony is incompetent when it is employed to bastardize a child, which is presumed legitimate by one of the strongest presumptions found in the law. Bankston v. Prime W. Corp., 271 Ark. 727, 610 S.W.2d 586 (1981).

There is a statutory presumption that a child born during a marriage is the legitimate child of both spouses. The longstanding common law rule is that the declarations of a father or mother, cannot be admitted to bastardize the issue born after marriage. Lakey v. Lakey, 18 Ark. App. 182, 712 S.W.2d 663 (1986).

Presumption of legitimacy of a child conceived, but not born, during marriage, is rebuttable. Willmon v. Hunter, 297 Ark. 358, 761 S.W.2d 924 (1988).

A child is considered legitimate if the parents were married at the time of its conception and before its birth, even though they were not married to each other at the time the child was born. Willmon v. Hunter, 297 Ark. 358, 761 S.W.2d 924 (1988).

It is not against the public policy of this state to allow a third party to attempt to illegitimize a child which was conceived, but not born, during marriage. Willmon v. Hunter, 297 Ark. 358, 761 S.W.2d 924 (1988).

Proof of Paternity.

Evidence established recognition of child by father. Rogers v. Morgan, 213 Ark. 229, 210 S.W.2d 129 (1948); Parker v. Hadley, 227 Ark. 161, 296 S.W.2d 391 (1956); Tuttle v. Phillips, 249 Ark. 617, 460 S.W.2d 328 (1970) (decision under prior law).

Evidence insufficient to establish paternity. Martin v. Martin, 212 Ark. 204, 205 S.W.2d 189 (1947); Edgar v. Dickens, 230 Ark. 7, 320 S.W.2d 761 (1959); Johnson v. Sanford, 239 Ark. 362, 389 S.W.2d 421 (1965) (decision under prior law); Eldridge v. Sullivan, 980 F.2d 499 (8th Cir. 1992).

In a suit to determine the distribution of proceeds of an insurance policy, it was not error to introduce an affidavit made by the deceased in a bastardy suit after being advised by an attorney, acknowledging that he was the father of the illegitimate child. Cantrell v. Prudential Ins. Co. of Am., 252 Ark. 70, 477 S.W.2d 484 (1972).

Where the proof as a whole indicated that the decedent, upon a number of occasions, had acknowledged the petitioner as being his son, the trial court's finding to the contrary was reversible error. Christman v. Jones, 254 Ark. 936, 497 S.W.2d 14 (1973).

Where in an action partitioning a decedent's estate, some putative heirs of the decedent sought a share of the proceeds when the land was partitioned, the evidence presented did not support their claim through their mother who allegedly was a daughter of the decedent, since the putative heirs did not prove that the decedent even knew their mother's mother some 26 years before he married her or that he fathered her child, the putative heirs' mother, when he was 15 and she was only 13 years of age. Ford v. King, 268 Ark. 128, 594 S.W.2d 227 (1980).

In probate proceeding which occurred after subsection (d) of this section was declared unconstitutional, but prior to 1979 amendment of the subsection, determination that woman was illegitimate daughter of decedent was properly made from clear, cogent, and convincing proof rather than written acknowledgment of the putative father or a judicial determination during the lifetime of the parties. Lewis v. Petty, 272 Ark. 250, 613 S.W.2d 585 (1981).

Testimony as to general reputation in the community on the issue of paternity and woman's birth certificate were admissible in order to determine if the woman was the illegitimate daughter of decedent. Lewis v. Petty, 272 Ark. 250, 613 S.W.2d 585 (1981) (decision under prior law).

Evidence supported the finding that the claimants were the legitimate children of their father and were entitled to inherit from their great-uncle through their father. Allen v. Wallis, 279 Ark. 149, 650 S.W.2d 225 (1983).

Paternity must be proven by clear and convincing evidence, i.e., that which instantly tilts the scales in the affirmative when weighed against evidence in opposition, and clearly convinces the factfinder that the evidence is true. Eldridge v. Sullivan, 980 F.2d 499 (8th Cir. 1992).

Retroactive Effect.

There is no language from which a legislative intention that the 1979 amendment to this section should have retroactive effect can be implied. Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979).

To prevent chaotic conditions arising from the lack of title to real property, Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), under which former subsection (d) of this section was constitutionally invalid should not be applied retroactively. Frakes v. Hunt, 266 Ark. 171, 583 S.W.2d 497 (1979), cert. denied, 444 U.S. 942, 100 S. Ct. 297, 62 L. Ed. 2d 309 (1979).

Cited: Walker v. Yarbrough, 257 Ark. 300, 516 S.W.2d 390 (1974); Compton v. White, 266 Ark. 648, 587 S.W.2d 829 (1979); Stewart v. Smith, 269 Ark. 363, 601 S.W.2d 837 (1980); Fulton v. Harris, 658 F.2d 641 (8th Cir. 1981); Henry v. Johnson, 292 Ark. 446, 730 S.W.2d 495 (1987); Finley v. Astrue, 372 Ark. 103, 270 S.W.3d 849 (2008); Finley v. Farm Cat, Inc., 103 Ark. App. 292, 288 S.W.3d 685 (2008).