Legal Definitions - dower and curtesy

Dower and Curtesy are historical legal terms that described the rights of a surviving spouse to a portion of their deceased partner's property. Historically, these rights were distinct and depended on the gender of the surviving spouse.

Traditionally, dower referred to the right of a widow (the wife) to receive a life estate in a specific portion, often one-third to one-half, of her deceased husband's real estate. This meant she could use and benefit from that property for the remainder of her life, but she could not sell or transfer full ownership.

Conversely, curtesy was the right of a widower (the husband) to a life estate in all of his deceased wife's real estate. However, this right was usually contingent upon the couple having had a child born alive during their marriage.

In modern legal systems, the specific terms "dower" and "curtesy" are largely obsolete. Due to advancements in gender equality and the prohibition of sex-based discrimination, most jurisdictions have replaced these gender-specific concepts with gender-neutral laws. These modern laws typically grant a surviving spouse an "elective share" or "statutory share" of the deceased spouse's estate, regardless of gender. The exact share and conditions vary significantly by state, but the underlying principle of protecting a surviving spouse's financial interests remains.

Here are some examples to illustrate these concepts:

• Historical Dower: Imagine a scenario in the early 20th century. Mr. and Mrs. Thompson owned a farm together. When Mr. Thompson passed away, leaving behind Mrs. Thompson and their adult children, the local law recognized Mrs. Thompson's dower rights. This meant that even though Mr. Thompson's will might have left the farm solely to his children, Mrs. Thompson was legally entitled to a life estate in one-third of the farm's acreage. She could continue to live on and benefit from that portion of the land for the rest of her life, ensuring her financial security, even if she didn't own it outright.

  Explanation: This example illustrates dower by showing a widow's historical right to a life interest in a portion of her deceased husband's property, providing her with support.

• Historical Curtesy: Consider a situation in the 19th century. Mr. and Mrs. Davies had two children during their marriage. Mrs. Davies owned a significant piece of land in her own name, inherited from her family. Upon Mrs. Davies's death, Mr. Davies was entitled to curtesy. Because they had children, Mr. Davies gained a life estate in all of Mrs. Davies's land. He could manage and profit from the entire property for the remainder of his life, even though the ultimate ownership would pass to their children after his death.

  Explanation: This example demonstrates curtesy by showing a widower's historical right to a life interest in all of his deceased wife's property, specifically highlighting the common condition of having had children together.

• Modern Evolution: In a contemporary setting, Sarah and Mark are married in a state that no longer uses the terms "dower" or "curtesy." Mark passes away, leaving a will that attempts to disinherit Sarah, leaving all his assets to a charity. However, state law provides for a surviving spouse's "elective share." Sarah can choose to "elect against the will" and claim a statutory percentage, perhaps 30% or 50%, of Mark's estate, regardless of what his will stated. This modern "elective share" serves the same protective purpose as historical dower and curtesy, but it is gender-neutral and applies to a broader range of assets, not just real estate, ensuring a surviving spouse is not left without support.

  Explanation: This example illustrates how the underlying principle of protecting a surviving spouse's interest in the deceased's estate has evolved from gender-specific dower and curtesy into modern, gender-neutral "elective share" laws, which prevent complete disinheritance.