Dower and curtesy are the rights of a surviving spouse in the late spouse’s real property. Under the common law husbands and wives were not heirs of one another. The realty of both spouses passed to their own blood heirs at their death. (A husband could, of course, devise land to someone other than his heir in his will. Since a wife could not make a separate will, any land that she might own would descend to her blood heir.) But that real estate was encumbered by, and subject to, the rights of the surviving spouse. Those rights – dower and curtesy – have a long history in English common law and were firmly entrenched by the time the American colonies were settled.
Dower is a different concept than dowry, which refers to the possessions that a wife brings into her marriage. It is also separate from a widow’s right to her late husband’s personal property.1 Dower refers to a widow’s interest in her husband’s real estate. Incidentally, that is where the term dowager comes from, meaning a widow with a dower interest in property.
A husband was legally bound to support his wife during their marriage. Dower was designed to continue that support after his death. Specifically, the widow acquired a one-third interest in whatever real estate her late husband owned. She had a right to one-third of the usage, income, and enjoyment of the land — and that right to income was protected from claims by her husband’s creditors.
A wife could not inherit the land of her husband unless it was specifically devised to her in his will — in the absence of such a provision land was inherited by the husband’s bloodline. Her dower interest was not ownership of the land but rather a life estate in one-third of its use and profits. Title to the land passed directly to the husband’s heir at his death, subject to the wife’s dower. She was effectively a tenant of whichever heir inherited the land.
Here are some key concepts for genealogists:
- Dower applied to land however acquired: The wife had a dower interest in all land owned by her husband during their marriage. That included any land that was owned by the husband at the time they married as well as any land he purchased, patented, or inherited during the marriage.
- Triggered by the husband’s death: Dower was merely theoretical until the wife became a widow. That is, while her husband was alive her dower interest had no value because it only came into existence when he died and she became a widow. A lawyer might call this an inchoate interest or a contingent non-vested remainder interest. The point is that her dower rights didn’t become real until the husband died.
- The estate in dower is separate from ownership: When the husband died, the widow acquired an estate in dower that was separate from the title to the land. Title to the land passed to the husband’s heir – but subject to the widow’s one-third interest. If the heir sold the land, the widow retained her estate in dower interest unless she relinquished it. When one sees a son selling inherited land and a female relinquishes dower, she might be his mother rather than his wife. If he were married, both his wife and his mother would each have a dower interest.
- Dower was a life estate: The estate in dower ceases when the widow dies. That is, it was a type of life estate that existed only for as long as she lived after the death of her husband. Obviously she could not dispose of it in her will because it did not survive her own death. She could sell her interest but its value, as with any life estate, would depend on her age and health. Sales of estates in dower are, in my experience, quite rare. However, a widow might well exchange her dower interest in several properties for a 100% life interest in (or even outright ownership of) a single property.
- Relinquishment of Dower: When the husband sold land, it was the normal practice for the wife to relinquish her dower interest so that title would pass free of her potential future claim. If she failed to do so and eventually outlived her husband, she could claim her one-third from whoever owned the land at the time. Indeed, most colonies allowed a widow to sue to recover her unrelinquished right in land sold by her husband. As a practical matter, no prudent buyer would accept a deed without a release by the wife. (It seems likely that some wives used this power to influence their husbands’ real estate transactions.) The release could take several forms – the wife could release dower by signing the deed herself or by signing a separate release or by acknowledging the release or the sale in court or before a justice. Although some jurisdictions recorded these releases in deed books, many did not. Thus the absence of a recorded release of dower is not necessarily meaningful. Some colonies required the wife’s consent to any land sales by her husband. Maryland was the first colony, in 1674, to require consent to all transactions.
- Life estate in lieu of Dower: Dower was originally meant to protect a widow whose spouse died intestate or without providing for her maintenance as a widow. While a husband’s will could not diminish or eliminate his wife’s dower right, it could certainly give her more than the law required. His will could give her outright ownership or, more commonly, could give the wife a life estate in lieu of her dower interest. For instance, the will of a husband might give the use of his plantation to his wife for her lifetime, after which possession would pass to a son. The son would acquire title immediately upon the death of the husband with possession deferred until the death of the widow.
After the American Revolution, the states began to revise their inheritance laws. Some states gave widows outright title to a portion of her husband’s real estate. In the typical model, the land of an intestate was divided (or partitioned) among the widow and children. In other states the widow inherited land only when there were no children. Over time, the notion of dower rights was replaced by explicit inheritance laws in most states.
With the advent of concepts like community property and joint ownership, the need for dower and curtesy has all but disappeared. Most states have long since abolished dower and curtesy altogether, and they exist only in special and restrictive forms in the others. In England dower and curtesy were effectively restricted to cases of intestacy by an act of 1834 that provided for elimination of dower rights by wills or deeds, and were finally abolished in 1922.
Curtesy (an old spelling of courtesy) was the male version of dower – but it applied only if the husband and wife had a child together. It was relatively unusual for women to own land, since a wife could not buy land of her own while married. She could, of course, purchase land as a single woman and later bring it into a marriage. But it was more often the case that a wife inherited land either before or during her marriage. If the wife died, her husband could not inherit his wife’s land — but he could claim a life interest in it, thus delaying possession by his wife’s heir.
During the marriage, the husband had an unrestricted right to the use of and income from any land that his wife might bring into the marriage or inherit. This was called an estate by marital right. This condition lasted only as long as both spouses were alive, so the husband’s interest did not extend beyond the wife’s death — unless they produced a child. If the couple produced a child who became, or might conceivably become, her heir then the husband’s interest effectively became a life estate for the duration of his own life. When the wife died, title would pass to her heir subject to the life estate of her husband – the husband would possess the land as a tenant by the curtesy of the law. Only at the death of the husband would her heir would have unrestricted possession.
Since a husband and wife were not heirs of one another, her land would descend at her death to her child or children subject to the laws of inheritance, subject to her husband’s curtesy interest. Curtesy applied only if she had children by her last husband. If she had no children by the last marriage, the land would go to the appropriate heir determined by the law of inheritance and succession and the widower she left behind would have no interest in it.
In the established English common law prior to the colonization of America, curtesy acquired some peculiar and counter-intuitive aspects. If the wife bore her heir by a first husband and later had a child by a second husband, the second husband’s curtesy could delay possession of the land by the child of the first husband. Further, it was not even necessary that the child of the second marriage outlive the mother; a live birth was all that was necessary. In the American colonies, situations of this sort were probably very rare, but were obvious candidates to be brought to courts of chancery or equity.
For example, let’s say that Martha is the only child of her father. She marries Charles and has children, the eldest of whom is James. Her father dies intestate so that his land descends to his only heir Martha. (Whether this happens before or after Martha’s marriage makes no difference in this example.) Time passes and Martha grows old and dies. James, her heir, inherits that land. If her husband Charles survives her he will have a life estate in the land and James will have to wait until Charles dies to gain full use the property. James’s title would be unencumbered when Charles relinquishes his curtesy interest or dies.
- A widow was entitled to outright ownership of one-half or one-third, depending on the existence of children, of her husband’s personal property. Or at least a child’s share if we are talking about a time frame after the American Revolution. [↩]