An inchoate dower is a common-law right of a surviving widow[i] and an inchoate curtesy right is a right available to a surviving husband. An inchoate dower and curtesy right arises and vests at the time of marriage with respect to the property owned by the spouse at the time of marriage and subsequent to the marriage[ii].
Under an inchoate dower right, a widow is entitled to one third of the inheritable real estate owned by her husband. A right to dower is said to be inchoate, prior to the husband’s death, and after his death it becomes absolute[iii]. An inchoate dower becomes a dower right upon the death of the husband. Similarly an inchoate curtesy right becomes a curtesy right upon the wife’s death.
Therefore, a spouse’s dower interest or curtesy right in a property would come into effect only if s/he survives her spouse and makes a positive election of the option of dower interest rather than the intestate share[iv]. An inchoate dower or curtesy right is an absolute right possessing some of the elements of property rights. It has a present cash value which is capable of computation[v].
An inchoate dower interest is a substantive right available to a widow upon the property of the husband[vi]. An inchoate dower interest is not an estate in land nor a vested interest. It acts as an encumbrance upon real property[vii].
An inchoate dower is a valuable right or interest that is protected by the court of equity at the instance of the widow[viii]. A widow’s right to dower cannot be defeated by a spouse by making a gift of all or more than one-half of his property to another with an intention to defeat the dower claim[ix].
However an inchoate dower does not create an encumbrance or personal claim over the spouse’s property[x]. The property to which a wife is entitled under inchoate dower right is exempted from bankruptcy trustees or creditors. Similarly, a husband’s inchoate curtesy right is also exempted from levy or execution by the husband’s creditors and lien created by a bankruptcy judgment against the husband.
The value of inchoate dower and curtesy right is calculated with the help of annuity tables.
[i] Silberman v. Jacobs, 259 Md. 1 (Md. 1970)
[ii] Cummings v. Schreur, 239 Mich. 178 (Mich. 1927)
[iii] Silberman v. Jacobs, 259 Md. 1 (Md. 1970)
[iv] Taylor v. Bailey, 49 N.C. App. 216 (N.C. Ct. App. 1980)
[v] Hamm v. Butler, 215 Ala. 572 (Ala. 1927)
[vi] American Blower Co. v. Mackenzie, 197 N.C. 152 (N.C. 1929)
[vii] City of Winston-Salem v. Yarbrough, 117 N.C. App. 340 (N.C. Ct. App. 1994)
[viii] Buckley v. Monsarrat, 12 Haw. 265, 265-266 (Haw. 1899)
[ix] Harris v. Rock, 799 S.W.2d 10 (Ky. 1990)
[x] Lavery v. Hutchinson, 249 Ill. 86 (Ill. 1911)