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Acts That Prevent Creation of Right or Interest

Dower can be released by the wife signing away her rights.  Release of dower claims is necessary where dower has not been repealed upon transfer of the property.  Dower can also be released by a prenuptial (antenuptial) or postnuptial agreement.  An antenuptial agreement by one party to release dower and curtesy rights and interests in the estate of the other party in consideration of marriage and for other valuable consideration, which is fair and adequate, is enforceable as to the party releasing the interest.

Prenuptial agreements are also called antenuptial agreements in certain states.  A prenuptial agreement is a written agreement entered into before marriage, where the parties set forth the mode of division of their respective properties upon death or divorce.  When the parties affix their respective signatures in this agreement, they agree that the other party’s estate plan will be binding regardless of the right of election, the right of dower or curtesy, or any other statutory rights.  In order to enforce such agreements, the courts need to look to individual representation and disclosure of their assets prior to the prenuptial.

In Rowell v. Barber, 142 Wis. 304 (Wis. 1910), Wis. Stat. § 2307(3) (1898) provides that every agreement, promise, or undertaking made upon consideration of marriage except mutual promises to marry shall be void unless the agreement or some note or memorandum thereof expressing the consideration be in writing and subscribed by the party charged therewith.

Since dower survives divorce unless the wife agrees to release her rights, a final divorce decree can make and should make express provision for the release of an estate of the spouse from a dower claim by the ex-spouse.  A wife can bar her right to dower.  Dower claims can be barred in two ways.

First, by placing the property into a trust prior to marriage it can be barred, since dower does not apply to equitable interests.  Second, dower can be barred by giving the deceased spouse a life estate in property along with a power of appointment created prior to the marriage.  However, the second method is more difficult and inflexible.

Jointure is a bar to dower and 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.  If such a jointure is neither in writing nor signed, then it shall be void under the statute of frauds.  Pursuant to Ky. Stat. § 2137, where the wife is lawfully deprived of her jointure, or any part thereof, not by any act of her own, she shall have indemnity out of her husband’s estate. 

In Maynard’s Adm’r v. Maynard, 285 Ky. 75 (Ky. 1940), the court stated that if “an estate be legally settled on the wife, before marriage, as a jointure in lieu of dower, or if, after the death of her husband, she has dower regularly allotted to her, in either case such estate would not be liable for the payment of the husband’s debts. But when she takes under the will, she holds the estate as devisee merely, and derives no right to it as widow, although the devise may have the effect to bar her claim to dower. She may waive the provision made for her by the will, and demand her dower, but if she fails to do it, and claims under the will, she occupies the same attitude of other devisees. The act is voluntary on her part, and if she accepts the provision made for her by the will, she must take the estate, subject to all claims against it.”

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