Dower: Statutory Provision for Surviving Spouses

August 25, 2024 3 min read Law Estate Planning Dower Curtesy Estate Law Surviving Spouse Common Law

Dower is a statutory provision in a common-law state that directs a certain portion of the estate (often one-third) to the surviving spouse. The term 'curtesy' is used if the surviving spouse is the husband.

On this page

Dower refers to a legal provision under common-law systems where a surviving spouse is entitled to a portion of the deceased spouse’s estate, usually one-third. This provision ensures financial stability for the surviving spouse following their partner’s death.

Historical Context and Evolution

The concept of dower dates back to feudal England, where it served as a means to provide for a widow after her husband’s death. Historically, dower rights were crucial for women who had limited property rights. Over time, these provisions have been reformed to adapt to modern societal norms and legal practices.

Modern Statutory Provisions

Common-Law States and Dower

In common-law states, dower provisions are typically codified in statutory law. The specifics can vary by jurisdiction, but the general principle remains to allocate a portion of the marital estate to the surviving spouse. The entitlement often encompasses:

Real Property: One-third interest in the deceased spouse’s real property.
Personal Property: Similar entitlements may extend to personal property.

Curtesy: Male Counterpart

The term curtesy refers to the equivalent right for a surviving husband to claim a portion of his deceased wife’s estate. Historically, curtesy required the couple to have had children, but many modern statutes have eliminated this requirement, aligning curtesy more closely with dower rights.

Examples and Applicability

Imagine a couple, where the husband, John, passes away. Under a common-law state’s dower provisions, his wife, Mary, may be entitled to one-third of John’s real estate holdings. If John owned property, Mary would thus secure her financial position despite his passing.

Conversely, should Mary have passed away first, John would invoke curtesy rights to claim a portion of her estate under similar conditions.

Elective Share: Some jurisdictions have replaced dower and curtesy with elective share statutes, allowing the surviving spouse to claim a statutory percentage of the estate, which might differ from traditional dower fractions.
Community Property States: In contrast, community property states automatically designate half of the marital property to the surviving spouse, differentiating from the dower system prevalent in common-law states.

FAQs

Is dower applicable in all states?

No, dower is primarily relevant in common-law property states. Some states have abolished dower in favor of elective shares.

Does a surviving spouse have to go to court to claim dower rights?

Often, the assertion of dower rights involves probate proceedings, where the spouse might need to file a claim.

How does dower compare to rights in community property states?

In community property states, surviving spouses are automatically entitled to 50% of the marital property, which is a more straightforward but different system than dower.

References

Black’s Law Dictionary
“Principles of Estate Planning” by Carolynn Tomin, CFP
State statutory provisions on dower and curtesy

Summary

Dower is a vital concept in estate law within common-law jurisdictions, designed to protect surviving spouses by allocating a statutory portion of the deceased spouse’s estate to them. While its necessity has diminished in contemporary practices, its historical significance and legal implications remain noteworthy, ensuring continued financial support to surviving spouses. Curtesy, as the male counterpart, aligns similarly, emphasizing the need for protective legal measures within estate management.