The rights of dower and curtesy originated in early England and it provided the surviving spouses a right in the estate and a means of support upon the death of a spouse. Usually, dower was the right of a widow to a one-third life estate in the property owned by the husband during the marriage and curtesy was the right of a widower to a life estate in all real property owned by the wife at the time of marriage only if issue of the marriage were born alive. At present, the dower and curtesy rights in each state are different.
Dower and curtesy rights arise only on the death of a spouse. Dower and curtesy rights have preference over the creditors’ rights and therefore protect surviving spouses in case of insolvent estates. The main elements of a dower claim are as follows:
- A valid marriage;
- A sole and beneficial seisin of property by the deceased spouse at any time during the marriage;
- Living issue(s) during the marriage; and
- The death of a spouse leaving the surviving spouse to claim dower.
Dower and curtesy apply only to legal property rather than equitable estates. The surviving spouse is entitled to a life estate in all the decedent’s real property owned in fee simple. The creation of a joint tenancy in land subject to a dower right creates a right in survivorship in the joint tenant that is generally superior to the inchoate dower rights of a spouse. A partnership interest and shares in a corporation cannot be subjected to common law because the interest and shares are regarded as personalty.
Apart from the creation of rights and interest in dower and curtesy, there are certain acts that prevent the creation of rights or interest in dower and curtesy. Dower can be released in two ways. It can be released by the wife signing away her rights and the second method to release a dower is by an antenuptial, more commonly known as a prenuptial agreement. To enforce a prenuptial agreement, the parties should disclose about all their assets prior the prenuptial and also the agreement should be in writing.
A dower claim can be barred in two ways; namely, by placing the property into a trust prior to marriage and by giving the deceased spouse a life estate in property along with a power of appointment created prior to the marriage. Jointure is an arrangement by which a man sets aside property to be used for the support and livelihood of his wife after his death and to continue during the life of the wife. This is a bar to dower.