The right of curtesy rests upon proof of a legally recognized marriage, as distinguished from a good faith marriage or a de facto marriage. Curtesy has lost its significance now and in some jurisdictions, curtesy attaches only to the real estate that the wife owns at death, rather than to the real estate owned by the wife during the marriage. Many jurisdictions have abolished the dower and curtesy rights. In other jurisdictions, curtesy has been abolished and replaced by statutes embodying the basic principles of common-law curtesy along with some modification.
In some states when proof of certain types of misconduct, such as adultery, voluntary sexual intercourse of a married person with a person other than one’s spouse, are provided then curtesy can be denied. Several state statutes preserve curtesy if legal separation was obtained due to the wife’s fault or misconduct. Statutes in many states provide that a murderer is not entitled to property rights in the estate of the victim.
Statutory modification of dower does not change its important features as part of the common law or change its purpose and effect. Moreover, in some jurisdictions, the status of dower as a right favored by the courts continues where it was replaced with a statutory right. A majority of the jurisdictions have included the abolition in their current provisions relating to intestacy, or administration of estates.
In Bialczak v. Moniak, 373 Pa. Super. 251 (Pa. Super. Ct. 1988), it was held that the common law dower rights are supplanted by the Probate, Estates, And Fiduciary Code. 20 P.S. § 2101 et seq., provides the apportionment of a surviving spouse’s share if a decedent dies intestate, or partially intestate. This section also provides the proper apportionment of the estate if a decedent dies leaving a will and also permits the surviving spouse to elect against the will. The Pennsylvania court emphasized that a common law right to dower does not exist in the state.
The Uniform Probate Code (“UPC”) replaces the dower and curtesy rule with a system which includes the surviving spouse as an heir in the line of intestate succession and provides an elective share for the surviving spouse who does not take under the decedent’s will. The UPC also provides the surviving spouse a right to receive an allowance at the time of probate of intestacy proceedings, purpose of which is to replace the right of quarantine.
The Uniform Marital Property Act (“UMPA”) provides each spouse with vested ownership interest in all acquired property by efforts of either spouse during the marriage. Such property shall be called marital property and property other than marital property shall be considered as individual property. The UMPA imposes certain responsibilities and inhibits mishandling of marital property between spouses. All marital property must be managed in good faith for the marriage.
Each spouse has an undivided present one-half interest in the marital property. Each spouse owns his or her own individual property. Further, marital property interests exist notwithstanding title as evidenced by title documents or otherwise. A spouse has his or her interest in marital property, even if that spouse’s name appears nowhere on any title documents. The UMPA only establishes marital property and makes adjustments in the general incidents of property ownership. Therefore, it does not affect the actual distribution of marital property at divorce or death.
The terms of a statute repealing dower shall have a prospective application only. In re Estate of Geringer, 300 So. 2d 710 (Fla. Dist. Ct. App. 3d Dist. 1974), the court found that the amendments to Fla. Stat. chs. 731.34 and 731.35 specifically provide that the act shall not be applicable to any estate the administration of which was commenced prior to the effective date of the act. The effective date of both chapters was October 1, 1973. Unless the terms of a statute require, or unequivocally imply, a retrospective application of a statute, the statute operates prospectively only.
However, a statute effectively abolishing dower in the estates of those who die after a certain date can bar a claim to dower in property that was purchased by the decedent spouse long before the effective date of the statute. In Funches v. Funches, 243 Va. 26 (Va. 1992), the court found that the Va. Code § 64.1-21 states that a surviving spouse was not entitled to dower or curtesy in equitable separate estate of deceased spouse if right thereto expressly excluded by instrument creating same, was repealed by Acts 1990, ch. 831, effective January 1, 1991.