Dower and Courtesy
Property acquired or earned by either spouse during marriage is marital property. Property earned prior to marriage, gifts, and inheritances are considered separate property. These properties can be converted into marital property. Upon the death of either spouse, marital property will be distributed subject to the deceased spouse’s will, rules of marital property, or intestate succession.
The rights of dower and curtesy are a set of rules relating to division of marital property, providing a surviving spouse with a means of support upon the death of the other spouse. Dower and curtesy rights arise upon the death of a spouse. Dower is a wife’s interest in her husband’s property upon his death. It is a portion of a deceased husband’s real property, usually one-third, that a widow is legally entitled to use during her lifetime to support herself and their children. A wife may claim the dower if her husband dies without a will or if she dissents from the will. In the U.S., many states have abolished dower rights and adopted rights of inheritance in place of dower. Where the dower right still exists, the right attaches to a land as soon as it comes into a husband’s possession. A dower right cannot be defeated by conveyance of a land by a husband in his lifetime unless the wife joins in the deed. If a wife is the guilty party in a divorce or if a marriage is annulled, the wife will not be entitled to dower.
A husband’s entitlement to a life estate that his wife possessed at her death is curtesy right. For curtesy, the couple must have a living child capable of inheriting his/ her mother’s estate. The common law provides that upon marriage, a husband acquires a right, called a freehold estate, to the use and profits of his wife’s lands. Upon the birth of a child capable of inheriting the land, a husband acquires a life estate or property interest. The husband can sell or mortgage the land and it can satisfy the claims of his creditors. Curtesy initiate is a husband’s right of curtesy before his wife’s death. It is the right created upon the birth of the couple’s first child. Curtesy consummate is a husband’s right of curtesy after his wife’s death. Upon the death of the wife, curtesy initiate becomes curtesy consummate. The right of curtesy rests upon proof of a legal marriage. Common law provides that an absolute divorce bars a claim of curtesy. Statutes in some states provide that curtesy can be denied upon proof of certain types of misconduct such as adultery and voluntary sexual intercourse of a married person with a person other than one’s spouse.
Dower and curtesy rights have been abolished in most states. Laws of descent and distribution, divorce and property distribution, and use of joint tenancies are now common for possession and distribution of marital property. Eleven states have adopted the Uniform Disposition of Community Property Rights at Death Act. Most states have abolished dower and curtesy because discrimination on the basis of sex is now illegal in most states and provide the same benefits regardless of sex. Now a marital share is often known as a statutory or elective share. A statutory or elective share is the portion of a deceased person’s estate that the surviving spouse is entitled to claim under state law. In many states, the elective share or statutory share is about one-third of a deceased spouse’s property. In most states, if the deceased spouse left a will, the surviving spouse must choose either what the will provides or the elective share.