Quarantine is the right of a surviving spouse to occupy and enjoy his/her former marital residence until such time as dower is formally assigned[i].
Upon the death of a husband, his widow has a right of dower which is not a property right but is only a chose in action or equity[ii]. Dower does not vest automatically in a widow but is allocated only on petition of widow, heirs or other interested parties[iii].
A widow is entitled to quarantine as an incidental right to dower[iv]. The right of quarantine exists before dower is assigned and continues during the widow’s lifetime[v]. However, the right of quarantine is limited to the dwelling house where her husband most usually resided before his death.
Thus, the right of quarantine is the privilege given to a widow to use certain portions of the husband’s estate until dower is allotted[vi]. The purpose of quarantine is primarily for the surviving spouse’s comfort and support and not to confine her to the marital domicile.
Until the date of the assignment of dower, a widow has no right to enter and occupy any part of her deceased husband’s estate or to retain possession thereof as against the heirs or those claiming under them. However, the widow has a statutory right of quarantine[vii].
Under the English common law of quarantine as later codified in the Magna Carta, a widow may remain in the chief residence of her husband for forty days following his death while awaiting her admeasurement of dower[viii].
During quarantine, the widow is considered to continue her husband’s estate and is not considered to have an estate of her own. The widow therefore has no higher title than the husband had in his lifetime and it is no better condition to defend her possession against a paramount title than her husband would have been. Thus, a wife cannot have quarantine in a house which did not belong to her husband since she has no better title than he had at the time of his death[ix].
In the requirement of possession, quarantine is distinct from dower. The dower right attaches to all lands of which the husband was seized during coverture, and his alienation of this property without his wife’s release or bar of her dower right does not affect her dower interest.
In re Estate of Del Guercio, 206 N.J. Super. 159 (Law Div. 1985), the court observed that the right of quarantine, which provides that the widow may remain in, hold and enjoy the house of her spouse, assumes that the wife is living in the home of her husband at the time of his death.
A widow retaining possession by virtue of her quarantine rights may acquire title by adverse possession[x]. However, in Marino v. Smith, 454 So. 2d 1380 (Ala. 1984), the court held that a widow whose dower remains unassigned cannot acquire title by adverse possession as against heirs simply by remaining in possession of her husband’s land.
Under some jurisdictions, when a widow’s right to dower in the lands of her husband are seized, she may continue to occupy the same with the children or other heirs of the deceased, or may receive one third part of the rents, issues and profits thereof, so long as the heirs or others interested do not object, without having the dower assigned[xi].
The failure of the widow to reside on the land after the husband’s death does not result in the forfeiture of her quarantine rights.
An abandonment of the legal right of quarantine should be deemed to occur only where[xii]:
- A person entitled to the right of quarantine has actually abandoned possession of the property subject to the right;
- Prior to, or at the time of, abandoning possession of the property the person knew of the existence of his right of quarantine;
- After abandoning possession of the property the person entitled to quarantine has demonstrated a lack of intention to repossess it; and
- The person entitled to quarantine has demonstrated an apparent indifference to what would become of the property.
Both at common law and under the statute, the right of quarantine has always been regarded as personal to a widow with dower unassigned. Therefore, the quarantine right cannot be sold and terminates when the widow disposes of dower[xiii].
Since a widow’s right of quarantine is an incident of dower and exists only until dower is assigned, when the right to have dower assigned expires by limitation and is lost to her, her right of quarantine is also lost[xiv]. Further, quarantine rights perish with the death of the widow[xv].
Also, a widow’s right to dower in her husband’s real estate, regardless of her continued possession, becomes extinct unless an appropriate proceeding for the admeasurement of dower is begun within ten years after her husband’s death[xvi]. The fact that she may remain in peaceful possession of his lands under her right of quarantine does not change this rule.
[i] Cutone v. Cutone, 169 W. Va. 79 (W. Va. 1982)
[ii] United States v. Hiles, 318 F.2d 56 (5th Cir. Ala. 1963)
[iii] Gillian v. Gillian, 340 So. 2d 785 (Ala. 1976)
[iv] Hale v. Cox, 240 Ala. 622 (Ala. 1941)
[v] Marino v. Smith, 454 So. 2d 1380 (Ala. 1984)
[vi] Beach v. Hopperton’s Ex’r, 303 Ky. 272 (Ky. 1946)
[vii] Wilder v. Mixon, 442 So. 2d 922 (Ala. 1983)
[viii] Wilson v. Wilson, 292 S.C. 362 (S.C. Ct. App. 1987)
[x] Lynch v. Jackson, 235 Ala. 90 (Ala. 1937)
[xi] In re Stroh Estate, 151 Mich. App. 513 (Mich. Ct. App. 1986)
[xii] Cutone v. Cutone, 169 W. Va. 79 (W. Va. 1982)
[xiii] Love v. Ward, 121 W. Va. 516 (W. Va. 1939)
[xiv] Moore v. Hoffman, 327 Mo. 852 (Mo. 1931)
[xv] Hale v. Cox, 240 Ala. 622 (Ala. 1941)
[xvi] Moore v. Hoffman, 327 Mo. 852 (Mo. 1931)