Dower and Curtesy Rights

You may have run into a phrase in a deed such as, ‘and I, Mary Jones, in consideration aforesaid do hereby relinquish my right of dower in the above mentioned property.’ What are dower rights? The concept came to North America with the colonists from English common law. At marriage, a woman’s legal existence was combined with her husband’s. In practice, it meant that real estate purchased during the marriage belonged to the husband. To create balance for this concept, a wife was granted dower rights which prevented a husband from selling property without the wife’s permission. Thus the clause above or one similar would appear in deeds.

Dower rights also granted women legal ownership of a portion of the real estate for the rest of her life, if the husband died first. While the dower portion was governed by each state's statute, it usually ranged from 33 to 50 percent. A woman was also protected from being left out of her husband’s will.  He could increase the share beyond one-third in his will, and some state laws limited the rights of a husband to bequeath less than a one-third share to his widow except in prescribed circumstances.  When the widow died, the real estate was then inherited as designated in her deceased husband's will; she had no rights to sell or bequeath the property independently. She did have rights to income from the dower during her lifetime, including rents and income from crops.

In most states, one-third of a husband's estate is awarded to a widow automatically if he dies without a will (intestate). In many jurisdictions, dower has been replaced by the 'elective share'. In others, statutes expressly provide that a spouse choose among the elective share, the dower, or the provisions of the will.  Thus most modern deeds have no dower clause.

A husband's corresponding right of inheritance was called curtesy. In England and early America, a widower could use 100 percent of his deceased wife's property (real estate which she acquired and held in her own name) until his own death, but could not sell or transfer it to anyone but children of his wife. Today in the United States, instead of using curtesy rights, most jurisdictions explicitly require that one-third to one-half of a wife's property be given outright to her husband at her death, if she dies without a will.

Today married couples hold land in some form of joint ownership that specifies how property is divided or inherited at the death of one partner.

©2011, Susan Lewis Well